I    mm  i  a      g 

i  H  m 


"••••'.    . 


.  Hi   •'•..'    •, 


- 


JTJBISPKTJDENCE 


Relation  to  the  Social  Sciences, 


DENIS   CAULFEILD  HERON,  Q.C., 

Member  of  Parliament  for  the  County  of  Tipperary. 


SAN  FRANCISCO : 
SUMNER  WHITNEY  &  COMPANY. 

NEW  YORK :  KURD  &  HOUGHTON. 


GKFTOF 

Bancron 
LIBRARY 


CONTENTS. 


CHAPTER  I. 

PAGE 

Introduction— The  Social  Sciences 1 


CHAPTER   II. 

Ethics  in  relation  to  Jurisprudence 19 

CHAPTER  III. 

Political  Economy  in  relation  to  Jurisprudence 30 

CHAPTER  IV. 

Jurisprudence 46 

Distinction  between  Ethics  and  Jurisprudence 51 

Limits  of  Jurisprudence 54 

Development  of  Sympathy 60 

Definitions  in  Jurisprudence  historically  considered 68 

The  Scientific  Definitions  in  Jurisprudence 82 

Political  Jurisprudence 91 

Province  of  Government — Taxation 100 

Taxes  on  Justice 116 

Duties  of  Government — Education 121 

Divisions  of  Jurisprudence 129 

Codification  138 

The  Study  of  Jurisprudence 145 

CHAPTER  V. 

Historical  Review . .                                                               ...  154 


861334 


CHAPTER  I. 

INTRODUCTION— THE   SOCIAL  SCIENCES. 

Jurisprudence  is  the  Science  of  Positive  Laws. 

It  has  been  observed  that  laws  are  by  the  public 
considered  as  something  distinct  from  common  life, 
and  the  common  affairs  of  society.  Yet,  to  one 
truly  reflecting  upon  the  nature  of  laws,  few  sub- 
jects ought  to  be  more  interesting.  The  whole 
fabric  of  society  rests  chiefly  on  the  law.  The 
social  and  political  life  in  which  we  live,  the  free- 
dom which  we  enjoy,  all  result  from  the  labors  of 
the  wise  and  good  in  this  department  of  human  in- 
telligence. And  the  Science  of  Jurisprudence  con- 
cerns not  individuals,  but  the  community.  The 
pleasures  of  knowledge,  the  glories  of  the  refined  arts, 
are  known  to  few.  Laws  are  praised  or  cursed  by 
every  fireside.  Each  nation  lives  in  the  cottage  as 
well  as  in  the  castle.  And  unless  the  beauty  of 
legislation  and  the  excellence  of  statesmanship 
dwell  in  the  feelings  and  condition  of  the  people, 
government  acts  like  the  Epicurean  gods,  who  en- 
joyed their  existence  careless  of  humanity. 

The  object  of  a  History  of  Jurisprudence  is  to 
exhibit  the  circumstances  which  have  attended  the 
establishment  of  existing  positive  laws.  But  the 
exposition  of  the  dead  laws  which  have  been  super- 

JURISPRUDKffCE— 1. 


-  INTRODUCTION. 


K'(k<-  is  :n:v;-aral>h-  interwoven  with  that  of  the 
living  laws  which  have  superseded  them.  And  in 
this  investigation  are  furnished  the  great  examples 
for  the  art  of  legislation. 

Bolingbroke  has  observed,  that  to  enable  one  to 
take  a  commanding  view  of  the  field  of  law  and 
legislation,  there  arc  two  principal  vantage  grounds 
on  which  it  is  necessary  to  mount  —  history  and 
metaphysics.  The  road  is  smooth  and  flowery  to  that 
vantage  ground  offered  by  history.  There  has  been 
no  want  of  those  who  have  ascended  to  it,  and  taken 
post  upon  it.  To  that  which  belongs  to  the  region 
of  metaphysics,  the  road  is  rugged  and  full  of 
thorns.  Few  have  attempted  to  gain  it  ;  fewer  have 
succeeded  in  placing  themselves  in  a  position  whence 
a  view  at  once  clear  and  extensive  could  be  obtained. 

Many  of  the  definitions  which  I  shall  adopt 
may  be  controverted.  They  are  attempts  to  give 
some  precision  and  accuracy  to  the  most  difficult 
department  of  Social  Science.  Lord  Bacon  has  said 
that  civil  knowledge  is  conversant  about  a  subject 
which,  above  all  others,  is  most  immersed  in  matter 
the  hardest  to  be  reduced  to  axiom.  Aristotle,  in 
the  Politics,  condemns  the  pursuit  of  a  delusive 
geometrical  accuracy  in  moral  reasoning.  Still,  the 
first  principles  of  Jurisprudence  arc  maxims  of 
reason  which  pervade  all  human  laws,  and  the  ob- 
servance of  which  is  discovered  by  experience  to  be 
essential  to  happiness  and  security. 


THE    SOCIAL    SCIENCES.  3 

I  have  attempted  to  sketch  an  outline  of  the  sub- 
jects and  divisions  of  Jurisprudence,  its  limits  and 
province. 

The  word  "  law,"  in  its  widest  sense,  is  used  to 
designate  those  natural  principles  which  are  incident 
to   and  govern   all  things,  animate   and  inanimate. 
The  entire  of  physical  nature  is  subject  to  certain 
laws — the  laws  of  gravitation,  of  light,  of  heat.    In 
the  Institutes  of  Justinian,  the  term  "  law  "  is  ex- 
tended   to   the    instincts    of    animals,    and    natural 
law  is  therein  defined  to  be  that  which  nature  has 
implanted  in  all  living  things.    "  For  this  is  not  proper 
to   men    exclusively,   but   belongs   to    all    animals, 
whether  produced  in  the  earth,  in  the  air,  or  in  the 
water."     Hooker  says :    "  That  which  doth  assign 
unto  each  thing  the  kind,  that  which  doth  moderate 
the  force  and  power,  that  which  doth  appoint  the 
form  and  measure  of  working,  the  same  we  term  a 
law/'     All  nature  obeys  certain  rules,  and  animals 
are  governed  by  fixed  instincts.     The  bee  and  the 
beaver  have  built  for  thousands  of  years  with  the 
same  degree   of    perfection.      The   celestial  bodies 
have  from  the  period  of  creation  rolled  in  their  or- 
bits, subject  to  the  laws  of  matter.     And  the  term 
"  law,"  in  its  general  philosophical  sense,  is  no  less 
applicable  to  the  phenomena  of  the  mind  than  to  the 
phenomena  of  matter.     The  processes  of  the  mind 
are   as  uniform  as  the  processes  of   matter.     The 
mode  in  which  the  mind  arrives  at  a  conclusion  is  as 


4  INTRODUCTION. 

fixed  and  unalterable  as  the  mode  in  which  an  apple 
falls  to  the  ground.  But,  in  Jurisprudence,  the 
meaning  of  the  word  law  is  limited.  Law  is  a  rule 
of  civil  conduct  prescribed  and  enforced  by  the 
State. 

A  science  is  a  collection  of  the  fundamental 
truths  concerning  the  same  subject-matter,  arranged 
in  methodical  order. 

Philosophy  is  the  explanation  of  the  phenomena 
of  the  universe.  The  objects  of  philosophy  arc  the 
discovery  of  what  is  true  and  the  practice  of  what 
is  good. 

The  explanation  of  a  phenomenon  is  the  reference 
of  the  fact  to  be  explained  to  some  known  principle. 

The  properties  and  motions  of  matter  form  the 
subject  of  natural  philosophy  and  its  subdivisions  : 
thus,  the  science  of  astronomy  treats  of  the  laws 
which  govern  the  heavenly  bodies ;  the  science  of 
mechanics  treats  of  the  laws  of  weight  and  motion. 

Similarly,  mental  philosophy  treats  of  the  laws 
which  regulate  the  power's,  faculties,  and  affections 
of  the  human  mind  and  its  development. 

Mental  philosophy  has  been  divided  into  two 
parts :  one  treats  of  man  in  his  individual  capacity, 
the  other  of  man  as  a  member  of  society.  But 
these  parts  are  divided  by  an  uncertain  line,  and 
each  encroaches  upon  the  distinct  province  of  the 
other.  The  first  branch  of  mental  philosophy  dis- 
s  the  individual  mind,  its  intellectual  as  well  as 


THE    SOCIAL    SCIENCES.  5 

its  moral  and  active  powers,  the  faculties  of  the  un- 
derstanding, and  those  of  the  will.  The  second 
branch  of  mental  philosophy  treats  of  the  social  de- 
velopment of  the  human  race,  and  has  been  termed 
the  Political  Science,  or  the  Social  Science,  or  So- 
ciology. 

Moral  Duties,  Exchanges,  and  Laws  are  the  three 
subjects  of  the  Social  Science. 

Ethics,  Political  Economy,  and  Jurisprudence 
form  the  three  divisions  of  the  Social  Science. 

Notwithstanding  considerable  progress  has  been 
made  in  some  of  the  physical  sciences,  especially  in 
astronomy,  still,  of  many  common  occurrences  in 
nature,  the  laws  are  either  unknown,  or  at  least  are 
not  reduced  to  that  precision  to  which  science  ought 
to  aspire. 

Prevision  is-  the  test  of  science.  Few  branches 
of  knowledge  as  yet  can  bear  that  test. 

But  the  possibility  of  a  science  which  can  treat 
of  the  laws  of  society  is  denied.  Even  in  the  nine- 
teenth century  our  writers  maintain  the  exploded 
doctrines  of  the  ancient  Sophists,  and  insist  that,  in 
the  domain  of  laws  and  politics,  there  exist  no  laws 
of  laws — leges  legum.  Mr.  Hallam  says  :  "  If  it  is 
meant  that  any  systematic  science,  whether  by  the 
name  of  Jurisprudence  or  Legislation,  can  be  laid 
down  as  to  the  principles  which  ought  to  determine 
the  institutions  of  all  nations,  or  that,  in  other 
words,  the  laws  of  each  separate  community  ought 


6  INTRODUCTION. 

to  be  regulated  by  any  universal  standard  in  mat- 
ters not  depending  upon  eternal  justice,  we  must 
demur  to  receiving  so  very  disputable  a  proposi- 
tion." 1 

This  passage  is  obscure.  If  the  term  "  eternal 
justice  "  be  intended  to  apply  only  to  those  principles 
of  right  which  can  be  enforced  in  the  most  advanced 
state  of  society,  then  the  doctrine  is  erroneous.  Many 
things  are  right  in  one  state  of  society  which  are 
wrong  in  another.  Slavery  appears  to  have  been 
suited  to  some  ancient  systems.  Trial  by  jury  is 
adapted  for  a  people,  honest,  fair-dealing,  tolerant, 
and  free;  it  does  not  produce  unmixed  good 
amongst  a  people  divided  into  fanatical  parties, 
hostile  to  one  another.  Trial  by  jury,  although 
right,  cannot  be  introduced  into  every  country. 
Slavery,  although  wrong,  cannot  be  at  once  abol- 
ished. 

Similarly,  Professor  Sedgwick,  in  his  discourse  on 
the  Studies  in  the  University  of  Cambridge,  says  : 
"If,  in  moral  reasoning,  it  be  mere  mockery  to  use 
the  language  of  abstraction,  and  to  build  up  systems 
by  trains  of  a  priori  reasoning,  it  is  assuredly  not 
hsurd  to  affect  the  forms  of  inductive  proof  in 
political  speculation.  Every  political  as  well  as 
every  moral  principle  practically  involves  the  de- 
termination of  the  will,  and  thereby  becomes  at  once 

1  Literature  of  Europe,  Vol.  2,  p.  586,  3d  Ed. 


THE   SOCIAL   SCIENCES.  7 

separated  from  that  class  of  investigations  in  which 
we  consider  the  immutable  relations  of  physical 
phenomena." l  The  various  causes  of  obstruction 
to  the  progress  of  the  scientific  cultivation  of  laws 
have  been  frequently  enumerated.  Modern  jurists 
have  fallen  into  confusion,  vagueness,  and  obscurity 
of  thought  from  not  having  distinguished  at  the 
outset  ethics  or  morals  from  compulsory  human 
law  ;  and  they  have  considered  both  under  one  gen- 
eral appellation.  They  have  adopted  a  kind  of  a 
priori  method  of  investigation,  instead  of  the  in- 
ductive method ;  they  have  assumed  general  prin- 
ciples, not  warranted  by  actual  observation  of  facts  ; 
they  have  invented  systems  of  law  and  government 
by  inductions  from  careless  or  imperfect  observa- 
tion, or  even  by  the  mere  force  of  imagination,  and 
then  adapted  the  facts  of  history  to  these  ideal  or 
fictitious  systems. 

However,  it  is  a  great  step  in  the  progress  of  sci- 
ence that  the  existence  of  laws  is  admitted  in  those 
operations  of  nature  which  form  the  subject  of 
the  physical  sciences.  But,  even  where  men  have 
the  choice  of  different  modes  of  action,  certain  con- 
sequences follow  from  adopting  one  course  of  action 
or  the  other.  Nor  are  such  laws  observable  merely 
in  the  conduct  of  the  individual.  They  are  more  to 
be  observed  in  the  conduct  of  multitudes,  and  in.  the 

1 5th -EcL  1850,  p.  81. 


8  INTRODUCTION. 

rise  and  fall  of  great  nations,  in  the  records  of 
crimes,  and  the  annals  of  justice.  If  an  army  be 
marshaled  confusedly — if  the  general  have  no  sym- 
pathy with  his  soldiers — if  they  do  not  obey  him 
with  promptitude,  zeal,  and  fidelity,  there  will  be 
but  an  unsuccessful  campaign  against  the  force 
where  order,  discipline,  and  enthusiasm  prevail. 
Faith,  labor,  honesty,  and  perseverance  have,  as" 
they  always  had,  their  power  to  elevate  in  the  scale 
of  humanity  the  men  and  nations  which  adopt 
them. 

At  the  present  period  of  philosophy,  therefore,  it 
is  not  pretended  that  the  Science  of  Society  is  in  a 
very  advanced  state.  It  is  easier  for  the  astronomer 
by  observation  to  ascertain  the  rules  of  celestial  me- 
chanics— it  is  easier  for  the  geologist  to  discover  the 
history  of  the  earth's  mutations — than  for  the  jurist 
to  trace  those  circumstances  in  human  affairs  which 
guide  men  to  truth  in  politics  and  laws.  In  all  hu- 
man probability,  Sociology  will  be  the  last  science 
to  be  perfected.  Of  its  three  component  parts,  the 
domain  of  Ethics  alone  has  been  scientifically  culti- 
vated by  the  greatest  intellects  for  a  long  period  in 
history.  But  Adam  Smith,  late  in  the  eighteenth 
century,  gave  the  first  great  impulse  to  the  study  of 
Political  Economy.  Benthain  and  Savigny,  names 
of  very  recent  memory,  have,  in  the  present  genera- 
tion, analyzed  and  historied  Jurisprudence. 

Yet,  though   the   Physical   Sciences   have   been 


THE   SOCIAL   SCIENCES.  9 

first  cultivated  with  some  degree  of  success,  the 
study  of  the  Social  Sciences  appears  more  important 
with  regard  to  human  progress.  Most  of  the  pro- 
cesses of  nature,  the  subjects  of  the  Physical  Sci- 
ences, are  beyond  the  dominion  of  man ;  and  though 
he  may  be  affected  by  their  result,  still  he  cannot 
control  them.  The  earth  sweeps  through  space 
round  the  sun,  careless  of  the  populations  which  it 
bears  ;  the  sun  revolves  round  some  distant  and  un- 
known center  of  gravitation ;  the  causes  of  light 
and  heat  are  mysteries.  The  earth,  with  all  its  mil- 
lions of  the  human  race,  inspired  by  love,  genius, 
and  ambition,  is  in  creation  but  a  whirling  speck  of 
dust ;  and  were  it  at  this  moment  to  vanish  into 
nothingness,  its  loss  would  be  unfelt,  unseen  by  the 
galaxies  which  throng  the  firmament.  But  most  of 
the  subjects  of  the  Social  Sciences  are  within  our 
dominion  ;  and  with  ourselves  alone  it  rests  whether 
we  will  use  and  combine  the  materials  of  civilization, 
or  leave  those  materials  unused,  and  remain  in  ig- 
norance, poverty,  and  misery. 

It  is  therefore  idle  to  declare  an  aversion  to  Po- 
litical Science :  in  so  doing,  persons  state  their  in- 
difference to  the  happiness  of  mankind.  It  is  true 
that  the  moral  and  legal  sentiments  of  mankind  are 
various  in  different  stages  of  civilization.  At  the 
present  day,  in  every  country,  all  opposing  parties, 
Conservatives  and  Progressists  alike,  contest  the 
first  principles  upon  which  Political  Science  is 


10  INTRODUCTION. 

founded?  but  a  similar  strife  has  occurred  in  the 
infancy  of  all  sciences.  What  varied  theories  have 
existed  in  astronomy!  The  boundaries  between  the 
virtue  of  justice  and  the  other  virtues  are  not 
yet  so  distinctly  defined  as  to  fix  the  limits  of  com- 
pulsory law.  Time  will  fix  thosd  limits.  In  legis- 
lation, the  historical  and  analytical  schools  have 
hitherto  been  opposed.  But  it  is  the  business  of 
science  to  unite  them,  for  actual  legislation  ought 
always  to  be  a  compromise  between  history  and 
philosophy.  Since  all  our  external  actions  react 
upon  our  fellow-men,  we  ought  to  strive  to  regulate 
them  according  to  the  laws  of  human  association, 
by  the  aid  of  those  very  Political  Sciences  which 
some  persons  despise.  All  legitimate  interests  are 
in  harmony,  and  the  healthful  prosperity  of  one 
promotes  the  prosperity  of  all.  The  study  of  the 
Social  Sciences  will  foster  disinterestedness,  sympa- 
thy, patriotism,  enthusiasm  for  all  that  is  good  and 
great.  Even  if  the  study  of  the  Political  Sciences 
•were  prohibited,  their  practice  could  not  for  a  single 
moment  be  suspended.  There  arc  nations  in  which 
the  theory  of  government  lias  never  been  the  sub- 
ject of  reflection  or  discussion ;  nevertheless,  they 
are  governed.  If,  then,  the  Social  Sciences  be  ob- 
scure, let  us  throw  light  upon  them  ;  if  they  be  un- 
certain, let  us  endeavor  to  fix  them;  if  they  be 
speculative,  let  us  establish  them  upon  reason  and 
experience. 


THE   SOCIAL   SCIENCES.  11 

In  every  science  the  principles  are  natural  and 
fixed.  Very  few  principles  as  yet  have  been  dis- 
covered in  any  science.  There  are  natural  and  fixed 
principles  of  legal  right  and  illegal  wrong,  as  there 
are  natural  and  fixed  principles  of  gravitation.  If 
the  laws  of  exchanges  were  properly  understood, 
legislative  interference  would  no  more  attempt  to 
control  the  rise  and  fall  of  prices  than  the  rise  and 
fall  of  the  barometer,  or  of  the  tides.  If  the  true 
principles  of  Jurisprudence  were  acted  upon,  absurd 
and  wicked  legislation  would  disappear. 

The  study  of  Jurisprudence  is  so  intimately  con- 
nected with  its  kindred  branches  of  Sociology,  that 
it  is  necessary  to  compare  and  define  their  several 
limits.  The  three  Social  Sciences,  Ethics,  Political 
Economy,  and  Jurisprudence,  are  so  united  that  it  is 
difficult  to  treat  of  their  subjects  without  the  equal 
assistance  of  the  jurist,  the  economist,  and  the 
moral  philosopher. 

The  object  of  the  Science  of  Jurisprudence  is  the 
discovery  of  the  relations  which  ought  to  be  estab- 
lished by  the  Positive  Law,  and  the  best  means  to 
enforce  such  relations. 

The  object  of  Political  Economy  is  the  discovery 
of  the  laws  which  regulate  the  exchangeable  value 
of  commodities,  and  the  discovery  of  the  best  means 
to  determine  the  distribution  of  wealth. 

Thus,  each  science,  as  to  its  own  subject-matter, 
strives  to  attain  the  true  objects  of  philosophy,  the 
discovery  of  truth  and  the  practice  of  good. 


12  INTRODUCTION. 

Many  kindred  branches  of  knowledge  assist  these 
studies.  Of  all  the  sciences  which  aid  the  progress 
of  Sociology,  the  most  important  is  Statistics. 

Statistics  is  the  science  of  social  facts  expressed 
in  numerical  terms.  It  is  most  intimately  allied  to 
the  three  Social  Sciences.  All  have  for  their  end 
the  amelioration  of  the  social  state.  All  guide, 
by  the  light  of  an  exalted  reason,  administrative 
and  political  powers.  But  the  Social  Sciences  pro- 
ceed with  boldness  into  the  most  elevated  region  of 

o 

speculative  systems,  whilst  Statistics  is  a  science  of 
facts,  which  in  rapid  figures  enumerates  the  wants  of 
nations,  their  daily  progress,  and  all  the  fortunate  or 
unhappy  individualities  of  their  destinies. 

The  Science  of  Statistics  aids  the  practice  of  the 
Social  Sciences  in  detailing  the  population  of  a 
country,  its  fertility,  its  means  of  communication 
and  defense.  This  science  fixes  the  numbers  of  the 
army  which  guarantees  the  independence  of  the 
State.  It  assists  in  the  just  imposition  of  taxes.  It 
tells  the  quantity  and  value  of  the  productions  of 
agriculture  and  manufactures.  It  traces  the  prog- 
ress of  the  national  education,  which  makes  men 
better 'by  enlightening  them.  It  gives  the  details  of 
the  machinery  and  cost  of  justice.  It  traces  the 
history  and  causes  of  disease,  and  points  out  the 
true  course  for  sanitary -reform.  It  illustrates,  by 
novel  and  exact  truths,  a  crowd  of  objects  which 
arise  from  day  to  day,  agitate  public  opinion,  and 
exhibit  problems  to  be  solved  by  the  Social  Science. 


THE   SOCIAL   SCIENCES.  13 

"Working  steadfastly  at  these  subjects,  wise  men 
have  developed  the  Social  Sciences,  and  the  human 
race  has  progressed  in  civilization.  Civilization  is 
that  condition  of  social  life  possessed  by  a  moral, 
educated,  and  wealthy  community,  enjoying  public 
security  and  liberty  under  the  protection  of  law. 
The  first  requisite  of  society  is  security.  When 
property  is  not  secure  from  foreign  ambition  or  civil 
commotion,  or  from  crime,  accumulation  cannot 
proceed,  nor  can  wealth  remain  in  that  degree 
which  is  necessary  to  provide  persons  with  the  lux- 
uries and  decencies  of  civilized  life.  No  one  would 
till  the  earth  unless  under  the  certainty  that  a  rea- 
sonable share  of  the  harvest  would  be  enjoyed  by 
himself.  No  one  would  voluntarily  live  and  work 
in  that  country  which  is  continually  ravaged  by 
foreign  armies.  Public  liberty  is  as  essential  an  in- 
gredient of  civilization  as  public  security  or  order. 
By  public  liberty  I  mean  freedom  of  discussion, 
freedom  of  action,  including  absolute  personal  lib- 
erty, 'a  free  press,  and  a  representative  government. 
But  wherever  there  is  tolerable  security,  even  without 
any  high  degree  of  liberty,  morality,  or  knowledge, 
wealth  may  still  accumulate.  Still,  morality,  or  the 
sense  of  right,  is  the  essential  ingredient  of  a  high 
order  of  civilization,  and  exercises  the  most  remark- 
able influence  on  the  prosperity  of  nations,  and  their 
success  in  art  and  war.  Facility  of  communication 
is  also  an  important  part  of  advanced  civilization. 


14  INTRODUCTION. 

A  country  cannot  be  considered  united,  nor  can  it 
possess  the  stability  of  centralized  government,  un- 
less there  be  easy  and  ready  means  of  communicat- 
ing from  the  capital  to  the  different  parts  of  the 
empire.  The  Romans  were  well  aware  of  this  AY  lien 
they  constructed  the  roads  which  remain  to  the 
present  day  memorials  of  the  Roman  greatness. 
But  the  recent  triumphs  of  mechanical  science  have 
surpassed  the  rude  efforts  of  ancient  times  ;  and  the 
railway,  the  steamboat,  and  the  electric  telegraph 
are  among  the  most  important  agents  in  the  diffu- 
sion of  knowledge  and  the  maintenance  of  freedom. 
In  nothing,  however,  have  the  civilized  nations  of 
modern  times  more  surpassed  the  civilization  of  the 
ancients  than  in  the  knowledge  and  education  of  the 
people.  Hence,  it  is  reasonable  to  entertain  a  hope 
that  our  present  civilizations  will  not  be  lost,  like 
those  of  Egypt,  Greece,  or  Rome.  The  first  liter- 
ary State  was  Athens,  possessed  of  the  little  terri- 
tory of  Attica,  containing  a  population  inferior  to 
that  of  some  English  and  Irish  counties.  Although 
books  then  were  enormously  dear — and  it  is  re- 
corded of  Plato  that  he  once  paid  £300  for  an  in- 
different volume — still  there  was  in  Athens  a  popu- 
lar education  of  a  high  order.  Thus,  Homer  and 
th*e  Rhapsodists  publicly  recited  their  poems  ;  the 
plays  of  ^Eschylus  and  Sophocles  were  performed 
in  the  presence  of  30,000  spectators ;  the  history  of 
Herodotus  was  read  at  the  Olympic  games ;  the 


THE   SOCIAL   SCIENCES.  15 

odes  of  Pindar  were  sung  at  Delphi ;  ^Escliines  and 
Demosthenes  addressed  the  people  in  the  assembly ; 
the  glorious  statues  and  temples  of  the  Ionian  race 
were  another  and  a  splendid  part  of  their  edu- 
cation. In  Eome,  there  was  no  popular  literature. 
The  military  aristocracy  encouraged  the  people  in 
their  warlike  spirit  by  wild-beast  shows  and  gladia- 
torial combats.  The  early  Romans  organized  gov- 
ernment and  war,  but  left  art  for  other  races.  The 
northern  conquerors  of  the  Roman  Empire  despised 
learning.  The  great  majority  of  their  kings,  counts, 
and  dukes  were  unable  to  write  their  names.  Their 
signature  was  a  seal,  signum,  impressed  on  their 
deeds.  In  effect,  the  improvement  of  the  mechan- 
ical arts,  the  invention  of  printing,  and  the  general 
use  of  paper  first  rendered  a  cheap  literature  and 
popular  education  possible.  There  is  a  great  differ- 
ence between  the  first  Gazette  published  at  Venice, 
and  the  Times  of  the  latter  half  of  the  nineteenth 
century.  The  first  Gazette  contained  fragments  of 
doubtful  news ;  now,  more  than  by  anything  else  in 
England,  the  people  are  educated  by  the  newspapers, 
that  with  such  industry  collect,  and  with  such  rap- 
idity disperse,  information  every  morning  to  the 
working  intelligence  of  the  empire.  The  education 
of  the  people  is  increasing  every  day  among  all  the 
nations  most  advanced  in  civilization.  It  was  even 
recently  the  fashion  to  discuss  whether  education 
ought  to  be  extended  to  the  people ;  but,  whilst 


16  INTRODUCTION. 

learned  men  discussed  these  things,  the  laboring 
classes  have  become  comparatively  educated,  and 
are  an  element  in  society.  And,  by  the  aid  of 
printing  and  the  diffusion  of  education,  one  clever 
man  can  now  speak  to  tens  of  thousands  more  than 
Demosthenes  ever  electrified  in  the  popular  assembly. 

Such  are  the  present  prospects  of  civilization.  It 
is  plain  that  if  the  civilized  nations  of  Europe  and 
America  were  left  to  themselves,  untrammeled  by 
the  feudal  forms,  and  freed  from  despotism,  whether 
monarchical  or  democratic,  a  long  career  of  progress 
would  be  before  us.  But  the  same  cause  which  has 
so  often  checked  civilization  for  centuries  may  again 
devastate  Europe.  War  is  the  greatest  foe  of 
progress.  War  has  often  annihilated  the  most  mag- 
nificent civilizations.  Foreign  aggression  ruined 
Egypt.  A  foreign  war  destroyed  Carthage  ;  and 
the  northern  coast  of  Africa  has  never  recovered 
from  the  devastations  committed  two  thousand  years 
ago  by  the  Eoman  soldiers.  Rome,  by  war,  de- 
stroyed the  Grecian  civilization.  The  northern 
barbarians  annihilated  the  Roman  Empire.  The 
Mahometans  conquered  the  civilization  which,  un- 
der the  Greek  emperors,  a  second  time  arose  on  the 
banks  of  the  Hellespont.  In  every  country  the 
ruins  of  lost  civilizations  appear,  destroyed  by  war. 

The  project  of  perpetual  peace  was  prominently 
brought  forward  by  Kant  toward  the  close  of  the 
eighteenth  century.  Some  of  the  articles  of  his  the- 


THE   SOCIAL   SCIENCES.  17 

oretical  treaty  of  a  perpetual  peace  are  essential  to 
study.  One  of  the  most  important  is  the  disband- 
ing of  those  vast  armies  which  now  consume  the 
wealth  of  the  most  powerful  States.  Standing 
armies — miles  perpetuus — ought  to  disappear  en- 
tirely with  time.  For  these,  appearing  always 
ready  for  the  combat,  incessantly  threaten  other 
powers  with  war,  and  incite  States  to  surpass  one 
another  in  the  number  of  their  troops.  This  rivalry 
is  a  source  of  expense,  which  ends  by  rendering 
peace  more  burdensome  than  a  short  war.  National 
debts  ought  not  to  be  contracted  for  the  purpose  of 
interests  external  to  the  State.  This  system  of 
credit  is  a  treasure  always  ready  for  war.  The 
only  security  for  the  preservation  of  universal  peace 
is  in  the  freedom  of  the  constitution  of  each  State. 
Where  citizens  are  free,  and  have  in  their  own  hands 
the  government,  they  hesitate  to  declare  against 
themselves  the  calamities  of  war ;  but  where  the 
subjects  are  not  citizens,  the  sovereign  and  the  gov- 
erning classes,  having  little  to  fear  for  their  personal 
comforts,  may  declare  war  upon  the  most  frivolous 
reasons. 

The  abolition  of  standing  armies,  the  restriction 
of  national  debts,  and  the  independence  of  repre- 
sentative constitutions  are  considered  by  Kant  to  be 
the  only  guarantees  of  peace.  But  these  are  most 
doubtful  topics.  Republics  have  been  the  fiercest 
aggressors  in  history.  And  the  standing  armies 
JURISPRUDENCE— 2. 


18  INTRODUCTION. 

and  police  of  Europe  are  necessary,  as  well  against 
the  foreign  enemy  as  against  the  internal  sedition 
which,  like  Communism  in  France,  attacks  order,  re- 
ligion, and  property. 


CHAPTER  H. 

ETHICS  IN  RELATION  TO  JURISPRUDENCE. 

Ethics  is  the  Science  of  Moral  Duties. 

The  purpose  of  the  Physical  Sciences  throughout 
all  their  provinces  is  to  answer  the  question,  "  What 
is  ?  "  They  consist  only  of  facts,  arranged  accord- 
ing to  their  likeness,  and  expressed  by  general  names 
given  to  every  class  of  similar  facts.  The  purpose 
of  the  Moral  Sciences  is  to  answer  both  the  ques- 
tions, "  What  is  ?  "  and  "  What  ought  to  be  ?  "  They 
aim  at  ascertaining  the  rules  which  ought  to  govern 
voluntary  action,  and  to  which  those  habitual  dis- 
positions of  mind  which  are  the  source  of  voluntary 
action  ought  to  be  adapted. 

The  possibility  of  erecting  Ethics  into  a  science 
can  be  consistently  disputed  by  those  only  who  ques- 
tion the  veracity  of  that  consciousness  which  im- 
mediately shows  to  us  the  existence  and  operation 
of  a  moral  faculty. 

The  arguments  against  the  existence  of  a  moral 
faculty  are  generally  founded  upon  the  gross  in- 
sensibility to  moral  distinctions  exhibited  by  unedu- 
cated children,  or  savage  nations ;  or  upon  instances 
of  persons  who,  from  various  causes,  have  counted 
those  things  right  which  we  deem  wrong,  or  es- 


20  ETHICS   IN   RELATION 

teemed  actions  as  praiseworthy  which  we  regard 
with  abhorrence.  But  such  exceptional  and  anom- 
alous cases  are  nothing  to  the  purpose.  When  we 
are  told  of  the  absurdities  and  self-contradictions 
believed,  or  at  least  professed,  by  whole  nations  as 
certain  truths — when  we  are  reminded  that  children 
and  uneducated  peasants  do  not  readily  assent  at 
first  hearing  to  the  very  axioms  of  science — we  arc 
not  apt  to  be  greatly  disconcerted  by  such  cavils 
against  the  existence  of  reason.  The  case  is  similar 
with  respect  to  imperfect  or  diseased  manifestations 
of  our  moral  nature.  Moral  blindness,  if  it  really 
exist  at  all,  is  a  phenomenon  far  too  rare  to  be  taken 
into  account  in  the  psychology  of  man.  The  goitre 
is  indeed  a  melancholy  instance  of  the  evil  results 
of  a  depressing  physical  condition ;  the  Chinese 
woman's  foot  displays  remarkably  the  power  of  bad 
training;  but  the  anatomist  of  healthy  humanity 
does  not  describe  goitres  and  club-feet  as  our  nor- 
mal condition.  Hume,  who  industriously  trav- 
ersed the  history  of  our  race  to  collect  all  the 
instances  of  aberration  which  have  resulted  from 
neglect  or  imperfect  study  of  the  moral  conscious- 
ness, is  constrained  to  conclude  *that  the  principles 
upon  which  men  reason  in  morals  are  always  the 
same,  though  their  conclusions  are  often  very  differ- 
ent ;  and  Dugald  Stewart  observes,  no  less  beauti- 
fully than  ingeniously,  that  the  histories  of  hum  an 
imbecility  are,  in  truth,  the  strongest  testimonies 


TO   JURISPRUDENCE.  21 

which  can  be  produced  to  prove  how  wonderful  is  the 
influence  of  the  fundamental  principles  of  morality 
over  the  belief,  when  they  are  able  to  sanctify  in  the 
apprehension  of  mankind  every  extravagant  opinion 
which  early  education  has  taught  us  to  associate 
with  them.  Such  are  their  opinions.  Though  the 
obscure  character  of  psychological  law,  the  influence 
of  predominating  passions,  or  the  capricious  action 
of  human  volition  may  interfere  with  the  inferential 
process  in  morals — and  though  the  peculiar  difficul- 
ties by  which  the  moral  philosopher  is  embarrassed, 
arising  from  the  unavoidable  use  of  a  terminology 
impressed  with  the  laxity  of  colloquial  language,  may 
render  futile  the  attempt  to  compete  with  the  geo- 
metrician in  the  simplicity  and  lucidity  of  his  deduc- 
tions—yet his  process  is  identical  with  the  geometri- 
cal method.  Could  we,  indeed,  shut  out  human 
volition,  and  the  action  of  disturbing  fancies,  man- 
kind would  no  more  differ  about  the  conclusions  to 
be  drawn  from  the  primary  elements  of  Ethics  than 
about  the  deductions  from  geometrical  postulates 
and  definitions.  Nor  are  the  Moral  Sciences  alone 
exposed  to  the  uncertainty  arising  from  disturbing 
influences.  There  are  elements  in  meteorology  and 
in  the  laws  of  the  tides  which  are  unaccountable, 
and  for  which  allowance  must  be  made  in  the  cal- 
culations which  compute  their  effects  in  any  given 
instance.  We  are  not,  then,  to  relinquish,  on  ac- 
count of  these  disturbing  influences  and  great 


22  ETHICS    IX   RELATION 

obstacles,  the  erection  of  an  imposing  group  of 
Moral  Sciences  on  grounds  quite  as  solid  as  those 
which  refer  to  the  material  world.  We  find  a 
scientific  basis  furnished  to  Ethics  in  the  laws  of 
our  moral  constitution ;  their  nature,  value,  and  the 
truths  guaranteed  by  them  can  be  determined  only 
by  inductive  investigation — the  common  method  of 
"  The  Athenian  Yerulam  and  the  British  Plato." 

It  is  quite  evident  that  Bacon  meant  his  method 
to  be  applicable  to  psychology  and  morals  as  well  as 
to  physics.  In  the  one  branch  of  philosophy,  as  in 
the  other,  there  should  be  an  orderly  observation  of 
facts,  accompanied  by  analysis,  or,  as  he  expresses 
it,  the  necessary  exclusions  of  things  indifferent. 
This  should  be  followed  by  a  process  of  generaliza- 
tion, in  which  we  seize  on  the  points  of  agreement. 
The  only  essential  difference  between  the  two  lies 
in  this,  that  in  the  one  we  take  the  senses,  and  in  the 
other  consciousness,  as  our  informant. 

The  only  question  of  any  difficulty  respecting  an 
inductive  treatment  of  morals,  seems  to  be  this : 
does  such  a  treatment  mean  that  there  are  no  a  priori 
or  intuitive  principles  of  moral  guidance,  which,  in- 
stead of  deriving  their  authority  from  experience, 
are  fitted  and  intended  to  sanction  experience  ?  Does 
not  such  a  procedure  expose  us  to  the  danger  of 
substituting  empirical  generalizations  and  accidental 
associations  for  necessary  truths  and  eternal  princi- 
ples?— of  confounding,  like  the  Athenian  sophists, 


TO    JURISPRUDENCE.  23 

an  average  morality  with  an  absolute  standard  of 
rectitude  ? 

This  objection  is  based  on  a  misapprehension  of 
the  scientific  process.  To  identify  ethical  trutli  with 
vulgar  credence,  or  to  adjust  it  to  the  fluctuating 
standard  which  the  popular  market  supplies  in  every 
age  to  the  demands  of  each  succeeding  generation, 
would  be  fatal  to  the  very  idea  of  a  real  moral  law. 
A  series  of  facts  brought  forward  to  show  the  gen- 
eral acknowledgment  among  men  of  a  moral  truth, 
must  be  carefully  distinguished  from  an  induction 
of  a  physical  law  from  facts  observed.  The  princi- 
ples operate  a  priori,  and  independently  of  experi- 
ence ;  they  cannot  become  known  to  us,  or  be  em- 
ployed as  philosophic  principles,  till  we  have  de- 
termined their  nature,  rules,  and  limits  by  method- 
ized observation.  The  distinction  between  moral 
good  and  evil — the  obligation  to  shun  the  evil  and 
do  the  good — are  laws  which,  like  the  laws  of  logic, 
man  discovers  in  his  own  nature,  and  which  have 
their  origin  in  himself,  as  they  have  their  application 
in  his  actual  life.  Moral  laws  are  put  into  a  man's 
soul  or  mind  as  into  a  treasury  or  repository — some 
in  his  very  nature,  some  in  after  actions,  by  educa- 
tion and  positive  sanction.  The  moralist  refers  for 
judgment  on  the  necessary  truths  he  enounces,  not 
to  voluminous  statistics,  however  undeniably  useful 
such  records  may  be  as  a  definite  expression  of  cer- 
tain facts  in  our  social  economy,  and  entitled  as  they 


24  ETHICS    IX   RELATION 

are  to  an  intermediate  place  between  morals  and 
politics;  lie  bids  the  student  descend  into  h is  own 
consciousness — the  depths  of  his  own  personality — 
and  observe  what  .he  finds  there. 

Mental  laws  thus  inductively  determined  are 
henceforward  to  be  regarded  as  primary  principles, 
and  are  open  at  once  to  the  sweeping  range  of  direct 
deduction.  And  again,  experience  has  its  part,  in 
which  there  is  an  immensity  to  be  done,  not  in  the 
way  of  invading  the  domain  of  the  exact  science, 
but  in  that  of  extending  our  knowledge  of  the  facts 
to  which  it  is  to  be  applied.  Where  the  science  of 
intuitive  morals  ends,  there  the  science  of  the  ex- 
perimentalist meets  it;  and,  by  a  process  which 
modern  logicians  have  named  traduction,  we  pass 
from  one  order  of  reasoning  to  the  other,  and  com- 
plete a  Science  of  Ethics  practically  applicable  to 
every  detail  of  life.  And  thus,  a  method,  con- 
structed after  the  aphorism  of  Bacon,  secures  to  the 
experimental  as  well  as  to  the  purely  rational  ele- 
ment its  own  approximate  value,  assigns  to  each  its 
own  place,  and  shows  how  the  two  are  inseparably 
united,  and  how  they  mutually  confirm  and  illus- 
trate each  other. 

The  preceding  general  views  may  be  illustrated 
by  the  following  passage  from  Kant :  "  It  is  more 
particularly  in  the  region  of  morals  that  Plato  dis- 
covers his  ideas.  Moral  truth  rests  upon  liberty, 
and  liberty  is  under  the  government  of  laws  which 


TO    JURISPRUDENCE.  25 

spring  from  the  reason  itself.  Whoever  would  rest 
the  idea  of  virtue  upon  experience,  and  establish  as 
a  model  that  which  can  scarcely  serve  as  an  ex- 
ample in  any  important  practical  application,  would 
render  virtue  altogether  uncertain,  make  it  depend- 
ent upon  time  and  circumstances,  and  render  the 
formation  of  any  rules  impossible.  Every  one,  on 
the  contrary,  can  see  that  if  any  person  were  held 
up  to  him  as  a  model  of  virtue,  it  is  only  in  himself 
that  the  true  type  exists,  to  which  the  proposed 
model  might  be  compared,  and,  consequently,  ap- 
preciated. Now,  this  type  is  the  idea  of  virtue  ;  the 
objects  of  experience  may,  indeed,  serve  as  examples 
to  show  that  what  the  reason  demands  is,  up  to  a 
certain  point,  possible  in  practice  ;  but  the  arche- 
type itself  is  not  there.  Because  a  man  never  acts 
in  accordance  with  the  pure  idea  he  has  of  virtue, 
it  does  not  follow  that  the  idea  itself  is  a  mere 
chimera ;  for  it  is  only  by  means  of  this  idea  that 
moral  judgments  are  formed  at  all ;  it  is,  con- 
sequently, the  foundation  of  moral  perfection,  so 
far  at  least  as  this  is  possible,  considering  the 
obstacles  which  human  nature  presents,  which  are, 
however,  indeterminate.  The  Republic  of  Plato 
has  become  proverbial  as  the  expression  of  an  imag- 
inary perfection ;  and  Brucker  ridicules  the  notion 
that  a  prince  could  never  govern  well  unless  pene- 
trated by  the  theory  of  ideas.  But,  instead  of 
throwing  aside  Plato's  thought  as  useless,  under  the 


26  ETHICS    IN   RELATION 

pretext  that  it  is  incapable  of  realization,  would  it 
not  be  better  to  attempt  a  development  of  it,  and  by 
renewed  efforts  draw  it  from  the  obscurity  in  which 
that  excellent  genius  has  left  it?  The  obstacles 
arise  less,  perhaps,  from  the  inevitable  evils  attached 
to  human  nature  than  from  a  neglect  of  these  verit- 
able ideas  in  legislation.  There  can  be  nothing 
more  unworthy  of  a  philosopher  than  to  appeal  to 
an  experience  which  is  acknowledged  to  be  in  con- 
tradiction to  these  ideas  ;  for  what  would  have  been 
the  experience  itself  if  the  institutions  in  question 
had  been  established  under  happier  auspices,  conform- 
ably to  ideas,  and  if,  instead,  other  ideas,  gross  and 
rude,  just  because  they  are  derived  from  experience, 
had  not  rendered  every  good  design  useless  ?  In 
all  that  has  reference  to  the  principles  of  morals 
and  legislation,  where  ideas  alone  render  experience 
possible,  Plato  possesses  a  merit  that  is  peculiar  to 
him,  and  which  we  are  prevented  from  recognizing 
only  because  we  judge  according  to  empirical  rules, 
whose  value  as  principles  is  as  nothing  compared 
with  that  of  ideas.  In  reference  to  external  nature, 
experience  may,  indeed,  furnish  rules,  since,  in  this 
case,  it  is  the  source  of  truth ;  but  in  reference  to 
morals,  experience  is  the  mother  of  illusion  ;  and  it 
is  altogether  error  to  reason  from  that  which  is 
done,  or  attempt  to  limit  it  by  laws  which  have 
especial  reference  to  that  which  ought  to  be  done." 
The  historical  method  of  inquiry  has  been  recom- 


TO   JURISPRUDENCE.  27 

mended  by  some,  as  by  Schleiermacher,  with  whom 
Ethics  is  an  investigation  of  human  nature  in  its 
forms  and  tendencies  developing  itself  in  history. 
It  must  be  conceded  that  history  supplies  to  Ethics 
its  most  valuable  illustrations  ;  but  as  human  action 
is  always  presented  in  history  as  a  complex  web,  in 
which  good  and  evil  are  mixed  together,  it  is  need- 
ful to  have  a  test  to  determine  which  is  the  one  and 
which  the  other.  We  are  thus  brought  back  to  the 
inductive  investigation  of  man's  moral  constitution 
as  the  only  method  of  constructing  a  scientific  Ethics 
in  reference  to  Jurisprudence. 

A  most  successful  illustration  of  this  inductive 
treatment  of  moral  phenomena  will  be  found  in 
the  ethical  writings  of  Butler :  "  There  are  two 
ways,"  writes  Butler,  "in  which  the  subject  of 
morals  may  be  treated.  One  begins  from  inquiring 
into  the  abstract  relations  of  things  ;  the  other  from 
a  matter  of  fact,  namely,  what  the  particular  nature 
of  man  is,  its  several  parts,  their  economy  or  con- 
stitution  i  from  whence  it  proceeds  to  determine 
what  course  of  life  it  is  which  is  correspondent 
to  this  whole  nature.  In  the  former  method  the 
conclusion  is  expressed  thus — that  vice  is  contrary 
to  the  nature  and  reason  of  things;  in  the  latter, 
that  it  is  a  violation  or  breaking  in  upon  our  own 
nature."  Of  the  former  method,  the  system  of 
Clarke — that  virtue  is  a  conformity  with  the  relations 
of  things ;  and  that  of  Wollaston — that  virtue  con- 


28  ETHICS   IX  RELATION 

sisted  in  acting  according  to  truth,  arc  the  most 
eminent  examples.  These  systems,  which  were 
recommended  by  the  intellectual  spirit  of  the  age  in 
which  they  were  produced,  when  the  splendid  dis- 
coveries of  Descartes,  of  Leibnitz,  and  of  Newton 
had  so  dazzled  the  mind  of  Europe,  have  now  be- 
come obsolete.  The  latter  procedure  was  universally 
employed  by  the  ancient  moralists  ;  and  Butler,  sys- 
tematically applying  it,  "  occupying  the  unassail- 
able ground  of  an  appeal  to  consciousness,"  has  es- 
tablished, by  reasons  superfluously  conclusive,  not 
merely  the  existence,  but  also  the  authoritative  char- 
acter and  the  implicit  sanction  of  the  moral  law. 
It  is  as  invested  with  these  majestic  attributes  of 
eternity,  immutability,  and  universal  authority,  that 
the  greatest  masters  of  philosophy  and  eloquence, 
both  in  ancient  and  modern  times,  have  loved  to 
contemplate  and  depict  the  moral  faculty.  Thus, 
Cicero  says  :  Right  reason  is  itself  a  law  congenial 
to  the  feelings  of  nature,  diffused  among  all  men, 
uniform,  eternal,  calling  us  imperiously  to  our  duty, 
and  peremptorily  prohibiting  every  violation  of  it. 
Nor  does  it  speak  one  language  at  Rome  and  another 
at  Athens,  varying  from  place  to  place,  or  from  time 
to  time ;  but  it  addresses  itself  to  all  nations  and  to 
all  ages,  deriving  its  authority  from  the  common 
Sovereign  of  the  universe,  and  carrying  home  its 
sanctions  to  every  breast  by  the  inevitable  punish- 
ment which  it  inflicts  on  transgressors.  Seneca 


TO    JURISPRUDENCE.  29 

says  :  There  is  a  holy  spirit  throned  within  us,  of  our 
good  and  evil  deeds  the  Guardian  and  the  Observer. 
As  he  is  treated  by  us,  even  so  he  treats  us.  Fene- 
lon  says  :  Le  Maitre  interieur  et  imiversel  dit  tou- 
jours  et  partout  les  memes  verites.  Under  the  same 
aspect  the  moral  law  is  presented  by  Kant,  when  he 
calls  it  the  Categorical  Imperative,  whose  absolute 
rule  is,  Act  according  to  a  maxim  which  would  ad- 
mit of  being  regarded  as  a  general  law  for  all  acting 
beings.  And  Lord  Brougham  says  :  There  is  a  law 
above  all  the  enactment  of  human  codes — the  same 
throughout  the  world — the  same  in  all  times — it  is 
the  law  written  by  the  finger  of  God  upon  the  heart 
of  man. 


CHAPTER  III. 

POLITICAL    ECONOMY   IX    RELATION   TO    JURISPRU- 
DENCE. 

Political  Economy  is  the   Science  of  Exchanges. 

The  bountiful  earth,  under  the  varying  influences 
of  soil  and  climate,  produces  different  things  useful 
and  agreeable  to  man.  In  tropical  climates,  nature 
turns  every  field  into  a  garden  :  there  trees  of  beau- 
tiful form  bear  rich  fruits ;  there  grow  the  shrubs 
from  which  we  obtain  our  spices,  and  variegated 
flowers  bloom  in  wanton  profusion.  The  organic 
richness  and  abundant  fertility  belonging  to  such 
districts  enable  them  to  produce  the  luxuries  of 
civilized  life.  Countries  more  temperate  afford  vines 
and  wheat.  Some  places  abound  in  iron  and  coal ; 
others  in  gold  and  silver.  All  civilized  nations  re- 
quire to  exchange  some  of  their  own  productions 
for  those  of  others,  and  upon  such  exchanges  does 
the  very  existence  of  civilized  life  depend. 

Between  one  country  and  another  obstacles  exist — 
seas,  mountains,  rivers,  forests.  These  things  throw 
difficulties  in  the  way  of  transit ;  and  to  facilitate 
the  operations  of  commerce,  the  ingenuity  of  man 
invents  speedy  and  safe  modes  of  conveyance. 
Canals  are  made,  harbors  widened,  rivers  deepened, 


POLITICAL   ECONOMY.  31 

navigation  improved.  Rapid  steamers  triumph 
against  the  winds ;  railways  tunnel  the  Alps  and 
bridge  the  Mississippi  and  the  Ganges.  Political 
Economy  shows  how  inconsistent  it  is  that  States 
should  undergo  the  greatest  expense,  by  building 
magnificent  railways  to  facilitate  intercourse,  and  at 
the  same  time  should  check  intercourse  by  commer- 
cial restrictions  and  taxes  which  artificially  raise 
prices. 

All  the  phenomena  which  occur  in  the  free  inter- 
changes of  the  productions  of  one  place  for  those 
of  another — the  rise  and  fall  of  prices,  and  the  rea- 
sons for  the  respective  values  of  commodities,  all 
the  questions  connected  with  capital  and  labor, 
everything  relating  to  exchanges — it  is  the  province 
of  Political  Economy  to  investigate.  No  subjects 
can  be  more  important  ;  and  the  investigation  of 
them  upon  sound  principles,  now  proceeding  in  most 
of  the  civilized  nations  of  Europe,  must  eventually 
produce  important  results  on  the  commerce,  the 
prosperity,  the  progress  of  the  world. 

At  first,  when  this  science  began  to  be  extensively 
cultivated,  objections  were  made  to  it,  on  the  grounds 
that  wealth  is  not  a  proper  subject  for  our  study,  for 
with  it  increase  also  corruption  and  vice.  Persons 
have  derived  ideas  of  this  kind  from  the  early 
study  of  the  Greek  and  Roman  writers  ;  the  minds 
of  classical  students  retain  through  life  the  ideas  of 
Cincinnatus  nobly  poor,  and  the  black  broth  upon 


32  POLITICAL   ECONOMY   IN 

which  Leonidas  and  his  Spartans  lived.  The  Ro- 
man writers  praised  sumptuary  laws,  and  declaimed 
with  all  the  strength  of  their  powerful  language 
against  the  degeneracy  of  their  fellow-citizens  from 
the  old  Republican  times,  ere  they  knew  the  refined 
arts  of  Greece,  or  enjoyed  the  plundered  riches  of 
the  East. 

But  no  fatal  union  necessarily  exists  between  na- 
tional wealth  and  national  corruption.  Greece  at 
the  time  of  her  greatest  material  prosperity  flour- 
ished most  in  eloquence,  in  arts,  and  arms.  The 
Netherlands,  in  the  time  of  Charles  V,  were  the 
most  industrious  and,  for  their  amount  of  territory, 
the  wealthiest  nation  in  the  world — they  exhibited 
no  want  of  devoted  heroism,  no  want  of  fiery  inde- 
pendence. And  although  England,  like  ancient 
Tyre,  has  her  merchants  who  are  princes,  her  traf- 
fickers who  are  the  honorable  of  the  earth,  she  still 
sits  very  glorious  in  the  middle  of  the  seas,  and  en- 
riches the  kings  of  the  earth  with  the  multitude  of 
her  riches  and  her  merchandise.  We  may  banish, 
then,  the  idea  that  the  abundant  returns  of  in- 
dustry, the  fruits  of  genius,  the  boundless  extent  of 
commerce,  the  exuberance  of  wealth,  and  the  culti- 
vation of  the  liberal  arts  are  enervating  to  the  na- 
tional spirit  or  dangerous  to  the  national  liberty. 
Liberty  depends  upon  the  structure  of  the  govern- 
ment, the  administration  of  justice,  and  the  intelli- 
gence of  the  people.  It  has  little  to  do  with  wealth, 
or  poverty,  or  soil,  or  climate. 


RELATION   TO   JURISPRUDENCE.  33 

The  Science  of  Political  Economy  is  of  recent 
origin. 

In  the  first  stages  of  society,  wealth,  in  the  pres- 
ent popular  meaning,  can  scarcely  be  said  to  exist. 
The  wandering  tribes  of  savages  live  by  hunting 
arid  fishing ;  their  habitations  are  formed  of  the 
bark  of  trees ;  their  wealth  consists  of  the  skins 
which  they  wear,  their  weapons  of  the  chase,  and 
their  canoes. 

In  the  progress  of  society,  the  next  step  to  this  is 
the  pastoral  state,  in  which  tribes  of  men,  united 
under  the  patriarchal  system  of  government,  have 
flocks,  and  live  upon  their  produce. 

From  this,  the  transition  to  the  agricultural  state 
is  easy,  in  which  there  are  more  opportunities  for 
accumulating  wealth,  and  in  which  civilization  rap- 
idly progresses.  Next  in  history  arise  the  civilized 
nations  of  antiquity  of  which  we  have  authentic 
record. 

In  Egypt  and  many  other  Oriental  nations  there 
was  great  wealth  ;  but  they  labored  under  oppres- 
sive despotisms.  The  bulk  of  the  population  was  in 
slavery.  The  government,  owning  all  the  land  of 
the  country,  was  enabled  to  compel  the  cultivators 
to  labor,  and  then  to  deprive  them  of  the  produce. 
The  Pyramids  of  Egypt  have  often  been  mentioned 
with  wonder,  as  evidences  of  the  greatness  of  that 
civilization  which  was  able  to  leave  such  great 
memorials.  To  me,  on  the  other  hand,  reflecting 
JURISPRUDENCE — 3. 


34  POLITICAL    ECONOMY    IX 

that  they  were  raised  by  forced  unpaid  labor  of 
thousands  of  miserable  beings  perishing  at  the  task, 
they  have  always  seemed  to  exhibit  only  proofs 
of  the  senseless  vanity  of  tyrants,  who  dragged 
so  many  of  their  subjects  together,  and  forced 
them  unpaid  to  raise  useless  heaps  of  stones,  when 
those  unhappy  persons  would  have  been  better  em- 
ployed in  building  comfortable  though  perishable 
houses  for  themselves,  and  living  there  with  their 
families. 

In  Egypt,  the  sacerdotal  caste  alone  attended  to 
intellectual  affairs,  whilst  the  rest  of  the  population 
was  sunk  in  ignorance.  The  entire  system  of  castes 
was  strictly  enforced.  These  castes  still  prevail 
throughout  the  East ;  and  the  system  this  moment 
may  be  seen  in  full  vigor  in  parts  of  India,  where 
Brahmins  and  their  children's  children  must  be 
priests  forever — where  the  descendants  of  soldiers 
must  always  be  soldiers — where  none  of  the  natives 
who  live  strictly  according  to  the  tenets  of  their 
religion,  can  leave  the  trade  or  business  which  their 
fathers  followed. 

In  modern  civilized  societies  there  are  many  ex- 
amples of  men  of  humble  birth  raising  themselves 
to  the  highest  position  and  the  greatest  fortunes. 
Under  the  ancient  tyrannies  it  was  impossible  for 
the  phenomena  attending  the  free  competition  of 
capital  and  labor  to  arise ;  it  was  impossible  for  the 
principles  of  taxation  to  be  discussed,  since  taxes 


RELATION  TO   JURI^PKUDEXCE.  35 

were  nothing  but  plunder  taken   by  the  powerful 
from  the  humble. 

In  these  old  times  the  universal  reign  of  rapine 
prevented  the  study  of  the  Social  Sciences  from 
nourishing  ;  notwithstanding  that,  some  nations  suc- 
cessfully cultivated  literature  and  the  arts.  Things 
now  only  practiced  by  the  outcasts  were  then  the 
pursuits  of  the  leaders  of  society.  Thus,  Homer 
introduces  Nestor  asking  Telemachus  whether  he 
and  his  friends  were  pirates  or  merchants  : 

"  Say,  what  the  cause — "why,  traversing  the  main, 
Steer  you  from  port  to  port  in  quest  of  gain  ? 
Or  to  and  fro,  like  roving  pirates  stray, 
"Who,  injuring  others,  cast  their  lives  away  ?  " 

—Odyssey,  Book  III. 

The  writer  evidently  did  not  consider  that  pro- 
fession dishonorable  which  now  is  punished  by  the 
rope,  and  to  destroy  which  civilized  nations  now 
offer  head-money  for  slain  pirates. 

Athens,  in  the  time  of  Pericles,  flourished  in 
wealth ;  her  poets  and  orators  hold  still  a  foremost 
place  amongst  the  intellects  of  the  world  ;  her  archi- 
tecture is  still  a  model  for  us ;  her  art  is  still  con- 
templated by  all  succeeding  time  with  admiring  de- 
spair. Rome,  under  the  later  Republic,  and  in  the 
time  of  the  Emperors,  accumulated  such  wealth  as 
London  now  can  scarcely  rival,  and  in  taste  and  art 
surpassed  the  Paris  of  the  Napoleons.  Why,  then, 
did  not  those  countries  cultivate  the  science  which 


36  POLITICAL   ECONOMY   IN 

treats  of  the  operations  that  bring  the  produce  of 
one  climate  to  another,  and  enable  the  inhabitants 
of  any  district  enjoying  a  fair  share  of  wealth  to 
possess  the  luxuries  of  the  most  remote  zones,  with- 
out the  discomforts  attending  their  production? 
One  reason  was,  the  utter  contempt  with  which 
trade  was  regarded  by  the  classic  times.  The  citi- 
zens of  the  ancient  States,  even  those  enjoying  the 
highest  degree  of  freedom,  all  despised  trade.  Those 
branches  of  commercial  and  manufacturing  industry 
which  have  raised  our  modern  civilization  to  so 
great  a  height,  and  without  which  it  would  at  once 
disappear,  were  scorned  by  the  warlike  citizens  of 
Greece  and  Rome.  Plato  excluded  tradesmen  from 
his  Republic.  Cicero,  although  in  most  respects  so 
far  in  advance  of  his  age,  thought  commerce  only 
not  very  despicable — "  hand  admodumvituperanda." 
He  says  also  :  "  I  do  not  wish  the  same  people  to 
be  the  ruler  and  the  carrier  of  the  world  " — "  Nolo 
eundem  populiwn  imperatorem,  et  portitorcm  esse 
terrarum."  Yet  it  has  been  the  boast  of  Venice, 
Holland,  and  England,  in  succession,  to  be  the 
carrier  of  the  world.  The  Romans  prohibited  com- 
merce to  persons  of  birth,  rank,  and  fortune,  and 
no  senator  was  allowed  a  vessel  larger  than  a  boat 
sufficient  to  carry  his  wine,  corn,  and  fruits.  The 
military  aristocracy  of  Rome,  without  trade  or 
commerce,  sought  wealth  in  the  only  manner  which 
can  take  the  place  of  production — plunder.  The 


RELATION   TO   JURISPRUDENCE.  37 

wealth  of  Rome  was  plunder  taken  openly  from  the 
countries  successively  overrun  by  the  victorious 
Roman  armies ;  the  principal  taxes  by  which  in 
latter  times  the  Roman  govarnment  subsisted  were 
tributes  drawn  from  conquered  provinces. 

The  very  sense  in  which  the  word  tributum  came 
to  be  used  shows  how  unfair  was  this — one  of  the 
earliest  taxes  in  Rome.  It  was  called  tributum,  be- 
ing paid  by  the  thirty  plebeian  tribes  instituted,  as 
has  been  supposed,  by  Servius  Tullius.  It  derived 
its  subsequent  meaning  from  being  a  partial  tax,  not 
paid  by  the  patricians,  and  a  badge  of  servitude 
upon  the  plebeians.  I  am  aware  that  it  is  a  moot- 
point  amongst  historians  whether  these  tribes  in- 
cluded the  patricians  or  not ;  but  I  consider  that  the 
sense  in  which  the  word  tributum  came  to  be  used 
finally  is  upon  this  question  decisive. 

The  wealth  of  Rome  was  principally  plunder 
drawn  from  conquered  countries.  As  each  partly 
civilized  nation  in  turn  yielded  to  the  terror  of  the 
Roman  armies,  its  wealth,  accumulated  for  centu- 
ries, was  transferred  to  Rome  and  spent  in  a  season. 
While  nations  thus  afforded  plunder,  Italy  flour- 
ished in  wealth,  and  was  covered  with  the  most 
magnificent  public  and  private  edifices.  But  when 
no  more  new  countries  could  be  overcome,  and  when 
the  tributes  could  no  longer  be  exacted  from  the  in- 
habitants of  the  provinces,  the  resources  of  Italy 
were  not  sufficient  to  keep  those  magnificent  edifices 


POLITICAL   ECONOMY   IN 

• 

from  mouldering  to  decay.  The  ancient  world  had 
within  it  the  fatal  principles  of  decay — the  despot- 
ism of  the  government,  the  tyranny  of  the  governing 
races,  the  slavery  and  ignorance  of  the  masses  of  the 
people.  The  old  civilization  fell  to  pieces  upon  the 
invasion  of  the  hardy  barbarians  of  the  north,  and 
the  Dark  Ages  for  a  time  covered  Europe  with  a 
cloud. 

When  learning  began  again  to  be  cultivated,  and 
when  the  European  universities  were  founded,  the 
old  prejudice  against  trade  and  commerce  still  sur- 
vived. The  feudal  system  nourished.  The  princi- 
ple of  the  feudal  system  was,  that  a  dominant  race 
tyrannized  over  a  subjected  one.  The  feudal  lords 
extorted  from  the  serfs  their  property,  and  insisted 
on  their  labor  without  paying  them  for  it.  No  man 
could  possess  the  absolute  property  of  the  land. 
The  greatest  contempt  was  manifested  for  trade. 
Warriors,  in  the  early  ages,  contemned  the  rights  of 
property  in  all  unable  to  protect  themselves  by  arms. 
No  nobleman  or  gentleman  in  the  feudal  times  would 
sully  himself  by  embracing  any  profession,  except 
that  of  arms — or  the  church.  As  a  proof  of  the 
great  contempt  for  trade  which  once  existed  in  En- 
gland, now  the  first  commercial  nation  upon  the 
earth,  the  most  lucrative  and  flourishing  branches  of 
trade  were  there  permitted  to  fall  into  the  hands  of 
despised  strangers — the  Jews  and  Lombards.  The 
Jews  invented  bills  of  exchange,  without  which,  or 


RELATION   TO   JURISPRUDENCE.  39 

some  similar  documents,  the  vast  mercantile  opera- 
tions now  based  upon  credit  could  not  be  conducted. 
The  Lombards  invented  shipping  insurances.  In 
this  state  of  society  none  of  the  phenomena  could 
prominently  appear  which  arise  from  the  free  dis- 
tribution of  property,  and  from  the  unrestrained 
competition  of  capital  and  labor.  None  would  con- 
sider about  the  cheapest  and  best  mode  of  taxation, 
whilst  taxes  were  the  property  of  governing  races, 
who  consumed  them  all  for  their  own  benefit,  and 
were  careless  about  the  welfare  of  the  producers. 
War  was  then  the  great  business  of  nations,  and  the 
attention  of  government  in  matters  of  taxation  was 
directed  merely  to  the  most  effectual  means  of  rais- 
ing the  supplies  to  meet  the  expenses  of  continual 
warfare.  The  best  statesman  was  he  who  raised 
most  taxes  with  least  trouble  from  the  oppressed 
common  people. 

The  great  discoveries  of  the  fifteenth  century  be- 
gan to  destroy  feudalism.  The  invention  of  gun- 
powder caused  the  castles  and  armor  of  the  barons 
to  be  useless,  by  means  of  which  they  had  been 
enabled  so  long  to  prevent  and  defy  any  general  law 
of  the  realm,  and  to  live  upon  the  plunder  of  the 
poor.  It  was  found  that  a  regiment  of  laborers,  dis- 
ciplined for  six  months,  and  armed  with  the  weapons 
introduced  by  this  wonderful  discovery,  were  supe- 
rior in  the  battle-field  to  the  bravest  knights,  mounted 
on  splendid  horses,  and  clad  in  costly  armor.  But 


40  POLITICAL   ECONOMY   IN 

the  new  weapons  were  expensive  ;  there,  again,  the 
wealth  of  the  towns  was  of  more  use  than  the  chiv- 
alry of  the  castles.  The  great  invention  of  print- 
ing diffused  knowledge  amongst  all.  The  great 
geographical  discoveries  gave  a  new  impetus  to  com- 
merce, which,  from  its  wealth  and  extended  opera- 
tions, began  no  longer  to  be  despised.  Slavery  by 
degrees  vanished  from  the  whole  of  Western  Eu- 
rope. Thus,  with  the  decline  of  the  feudal  system, 
arose  that  commercial  and  manufacturing  spirit 
which  is  now  beginning  to  be  one  of  the  great  mov- 
ing powers  of  the  world. 

Once,  therefore,  that  the  settled  conditions  of 
modern  society  began  to  arise  in  Western  Europe, 
the  serfs,  emancipated  from  the  feudal  system,  were 
enabled  to  dispose  of  their  labor  at  the  price  which 
they  considered  sufficiently  remunerative  for  them  ; 
merchants,  under  the  protection  of  the  law,  no  longer 
feared  that  their  property  would  be  taken  from  them 
at  the  will  of  some  baron  ;  wealth  rapidly  accumu- 
lated, and  some  men,  instead  of  working  with  their 
own  capital,  began  to  live  upon  the  profits  of  their 
capital  lent  to  others.  In  consequence,  all  the  nice 
and  complicated  questions  connected  with  capital, 
labor,  wages,  and  taxation  began  to  attract  the  at- 
tention of  learned  men,  and  from  their  studies  and 
writings  upon  these  important  subjects  has  arisen 
the  modern  science  of  Political  Economy.  The  ori- 
gin of  this  science  is  cotemporaneous  with  the  spread 


RELATION   TO    JURISPRUDENCE.  41 

of  modern  civilization,  the  increase  of  commerce, 
the  rise  of  public  liberty. 

And  briefly  reviewing  the  history  of  Western 
Europe,  we  may  see  that  the  march  of  civilization 
has  been  steady  and  progressive.  First,  the  serfs 
are  emancipated,  then  trade  becomes  honorable,  and 
from  these  conditions,  combined  with  some  others,  has 
arisen  the  great  middle  class,  displaying  the  highest 
social  activity,  and  cultivating  the  greatest  spirit  of 
industry  ever  witnessed  in  the  world.  Having  ac- 
complished so  much,  the  spirit  of  progress  now 
directs  its  efforts  to  solve  the  social  difficulties  of 
society;  and  in  this,  one  of  its  chief  aids  is  the 
Science  of  Political  Economy. 

Some  have  despaired  of  continual  progress,  and 
assuredly  all  over  the  earth  we  behold  the  ruins  of 
lost  civilizations.  In  Central  America,  amidst  for- 
ests a  thousand  years  of  age,  the  traveler  beholds 
ruins  of  statues  and  temples  that  rival  Athenian  art 
and  Egyptian  architecture.  They  lie,  broken  and 
defaced,  memorials  of  great  and  civilized  nations, 
whose  very  names  ages  ago  perished  from  human 
memory.  Babylon,  Nineveh,  Carthage,  once  were 
great  cities,  and  now  are  either  heaps  of  ruins 
or  effaced  from  the  earth.  Still,  we  may  anticipate 
that  progress  may  have  a  long  career.  Sometimes 
for  centuries  it  has  been  interrupted,  yet  since  the 
dawn  of  history  there  is  evidence  of  its  continuance. 
"VYe  behold  upon  the  earth  places  like  the  impassable 


42  POLITICAL   ECONOMY    IX 

morasses  of  the  Amazon,  breathing  forth  devastat- 
ing epidemics,  and  affording  to  the  few  creatures  in 
human  form  that  linger  there,  the  means  of  drag- 
ging on  but  a  dull  and  joyless  existence,  without 
usefulness  or  dignity.  Comparatively  recent  history 
informs  ns  that  when  the  Athenian  civilization 
flourished,  the  greater  part  of  Europe,  and  now  its 
most  flourishing  and  civilized  part,  bore  the  same 
character.  When  Pericles  lived  his  glorious  exist- 
ence, those  countries  which,  under  the  names  of 
France  and  Germany,  are  covered  with  rich  corn- 
fields and  beautiful  vineyards,  and  have  produced  so 
many  great  and  good  men,  were  disfigured  with 
rocks  and  marshes,  and  were  inhabited  by  uncivil- 
ized men  not  very  superior  to  the  present  New 
Zealanders.  The  rivers,  which  then  formed  noisome 
swamps,  have  been  taught  to  keep  their  channels, 
and  are  covered  with  steamers ;  the  rocks  arc  built 
into  libraries  and  cathedrals,  and  the  descendants  of 
the  savages  who  dwelt  there  have  been  brought 
under  the  dominion  of  law,  and  into  the  habits  of 
peaceful  life.  So  also,  in  the  North  and  South 
Americas,  Australia,  and  the  islands  of  the  Pacific 
and  Southern  Oceans,  savage  life  is  everywhere  be- 
ing replaced  by  civilization. 

In  the  popular  liberty  which  has  enabled  so  many 
men  of  humble  birth  in  modern  times  to  raise  them- 
selves to  the  honorable  positions  which  they  have 


•RELATION   TO    JURISPRUDENCE.  43 

adorned,  we  see  the  best  proofs  of  the  high  charac- 
ter of  our  modern  civilization.  In  the  development 
of  society,  civilized  nations  have  arrived  at  that 
stage  where  commerce  is  free,  where  industry  is 
honored.  The  fruits  of  labor  are  protected  by  the 
law,  its  exertions  are  respected. 

The  study  of  the  Social  Sciences  has  aided  to  pro- 
duce these  sentiments,  beginning  to  pervade  the 
heart  of  modern  society.  I  have  always  considered 
that  the  study  of  the  Social  Sciences,  such  as  Juris- 
prudence and  Political  Economy,  should  form  a  part 
of  the  general  education  of  all,  the  poorest  as  well 
as  the  richest  in  the  land. 

The  sciences  may  be  placed  in  two  divisions.  Some 
of  necessity  need  to  be  known  only  to  those  who 
practice  them  professionally.  We  all  can  enjoy  the 
fullest  benefit  of  the  mechanical  sciences,  notwith- 
standing our  ignorance  of  them.  Few  are  acquainted 
with  the  mechanism  of  the  steam-engine,  yet  millions 
enjoy  the  benefits  of  railway  traveling.  But  sci- 
ences, like  Morality,  Jurisprudence,  Medicine,  and 
Political  Economy,  derive  their  efficacy,  not  from  the 
knowledge  concentrated  in  particular  professions, 
but  from  the  general  correct  knowledge  of  them 
diffused  through  the  public  ;  and  these  sciences  have 
this  striking  peculiarity,  that  no  one  confesses  his 
absolute  ignorance  of  them.  Every  one  every  day 
practices  Morality,  Jurisprudence,  Medicine,  and  Po~ 


44  POLITICAL   ECONOMY    IN 

litical  Economy,  let  them  be  good  or  bad — and  they 
are  often  very  bad.  Hence  arises  the  importance  of 
general  education  upon  these  subjects.  And  as  re- 
gards Political  Economy,  I  may  say  there  are  no 
subjects  more  interesting  than  those  about  which 
this  science  is  conversant.  They  are  those  which 
concern  every  individual  in  the  community ;  they  are 
those  upon  which,  in  a  very  great  measure,  individ- 
ual and  national  prosperity  depend.  There  is  no  one 
who  does  not  buy  and  sell,  who  does  not  pay  taxes, 
"  who  does  not  employ  labor  or  is  employed.  And 
there  cannot  be  upon  earth  a  study  of  more  extended 
dignity  and  usefulness,  more  becoming  to  philan- 
thropy and  patriotism,  than  the  requisite  and  practi- 
cal reform  of  the  social  institutions  of  the  country 
• — the  solution  of  the  social  difficulties  of  the  day. 
It  is  right  to  cultivate  this  social  knowledge.  By 
the  study  of  these  liberal  sciences  we  shall  the  more 
assist  the  diffusion  of  the  sentiments  now  spreading 
throughout  the  world,  and  by  means  of  which  all 
enlightened  men  regard  the  human  race,  without 
distinction,  as  one  family  aspiring  to  one  common 
aim — the  development  of  the  faculties  with  which 
they  have  been  endowed.  The  Social  Sciences  are 
of  no  one  country,  they  belong  to  the  entire  world. 
Those  who  cultivate  them,  though  separated  by  dis- 
tance and  by  language,  yet  understand  one  another. 
Fellow-countrymen  in  thought,  they  form  one  vast 
intellectual  society  of  citizens  of  the  world,  pursu- 


RELATION  TO   JURISPRUDENCE.  45 

ing  the  same  end,  the  discovery  of  universal  truth 
— animated  by  one  feeling,  the  patriotism  of  civili- 
zation. 


CHAPTER  IV. 

JURISPRUDENCE. 

The  term  Jurisprudence  has  been  used  in  very 
different  senses.  Originally,  it  meant  the  science  of 
right.  Afterward,  it  was  used  to  mean  knowledge 
of  the  principles  of  law,  or  skill  in  its  practice.  In 
the  Institutes  of  Justinian,  Jurisprudence  is  defined 
to  be  the  knowledge  of  what  is  just  and  unjust. 
Upon  the  revival  of  learning  in  Europe,  in  the  six- 
teenth century,  Jurisprudence  was  used  to  signify 
knowledge  of  the  Roman  law.  The  term  has  also 
been  used,  in  a  sense  borrowed  from  the  French,  to 
imply  a  collection  of  the  principles  belonging  to 
particular  branches  of  law — thus,  Equity  Juris- 
prudence, Maritime  Jurisprudence.  The  term  has 
also  been  used  to  signify  the  whole  body  of  the  law 
of  a  State — thus,  the  Jurisprudence  of  England. 

The  philological  meanings  of  legal  terms  best  il- 
lustrate legal  history.  There  are  three  phases  in 
the  development  of  law — the  religious,  technical, 
and  scientific.  In  the  origin  of  society,  every  dis- 
puted question  in  law  is  referred  to  the  decision  of 
God.  In  all  languages  the  legal  terms  of  pleading 
causes  originally  imply  the  idea  of  prayer.  Trials 
are  by  ordeal  and  by  battle  amongst  all  nations  in 
an  early  state  of  civilization. 


JURISPRUDENCE.  47 

In  the  second  phase  of  law,  nations,  by  means  of 
pre-appointed  evidence  and  forms  of  a  minute  and 
cumulative  nature,  endeavor  to  attain  certainty. 
Seven  Roman  citizens  were  originally  necessary  to 
attest  a  Roman  will.  Under  the  English  law, 
twelve  jurors  must  unanimously  find  a  prisoner 
guilty  before  he  can  receive  punishment.  Justice, 
under  such  a  system,  becomes  minute  and  technical. 
The  judges  often  knowingly  do  what  is  unjust  in 
carrying  out  the  letter  of  the  law.  The  maxim  of 
this  second  phase  is,  "  Let  justice  be  done  though  the 
heavens  should  fall  " — -fiat  justitia  mat  codum.  Jus- 
tice and  the  corresponding  terms  in  this  phase  of 
law  mean  equality  of  division  in  all  languages. 

Finally,  men  begin  to  perceive  that  there  are  nat- 
ural principles  of  right  and  wrong ;  and,  in  the 
third  phase  of  law,  endeavor  to  attain  truth  and 
justice  by  the  aid  of  reason  and  experience. 

Whilst  the  first  and  second  phases  prevail  amongst 
a  nation,  law  cannot  be  scientifically  cultivated.  In 
the  third  phase,  the  possibility  is  admitted  of  arriv- 
ing at  a  complete  science  of  law  or  science  of  right. 
In  other  words,  the  possibility  is  admitted  of  col- 
lecting and  arranging  in  methodical  order  the  fund- 
amental principles  which  explain  the  origin  of  laws 
and  their  development  toward  perfection.  Some 
term  is  necessary  to  denote  the  science  of  law.  Ju- 
risprudence has  been  the  word  adopted.  No  science 
can  possibly  be  developed  without  method,  nonien- 


48  JURISPRUDENCE. 

clature,  and  classification.  "  Nomina  si  pereant, 
perit  et  cognitio  rcrum."  Method  facilitates  com- 
prehension, abridges  labor,  assists  the  memory,  and 
trains  the  intellect  to  accurate  judgment.  In  every 
species  of  knowledge,  disorder  in  language  is  at 
once  the  effect  and  the  cause  of  ignorance  and  error. 
Nomenclature  can  only  be  perfected  in  proportion 
as  truth  is  discovered.  The  classification  of  laws 
has  never  yet  been  adopted  upon  the  grand  scale 
demanded  by  Jurisprudence.  If  a  system  of  law 
were  correctly  framed,  and  if  codes  of  laws  were 
drafted  on  one  true  principle  by  all  civilized  nations, 
the  language  of  each  race  would  serve  as  a  glossary 
by  which  all  systems  of  Positive  Law  might  be  ex- 
plained ;  whilst  the  matter  in  each  code  would  afford 
a  test  and  standard  by  which  all  might  be  tried. 
Thus  classified  and  illustrated,  the  practice  of  every 
nation  might  be  a  lesson  to  every  other,  and  man- 
kind might  carry  on  a  mutual  intercourse  of  ex- 
perience  and  improvements  as  easily  in  law  as  in 
every  other  domain  of  art  and  science. 

By  law  is  here  understood  Positive  Law- — that  is, 
the  law  existing  by  position,  or  the  law  of  human 
enactment.  Jurisprudence  is  the  Science  of  Positive 
Laws,  and,  as  such,  is  the  theory  of  those  duties 
which  are  capable  of  being  enforced  by  the  public 
authority.  Jurisprudence,  so  treated,  may  take  its 
place  as  one  of  those  inductive  sciences  in  which,  by 
the  observation  of  facts  and  the  use  of  reason, 


JURISPRUDENCE.  49 

systems  of  doctrine  have  been  established  which  are 
universally  received  as  truths  among  thoughtful 
men. 

But  Jurisprudence,  in  its  investigation  of  the  ori- 
gin, principles,  and  development  of  law,  obviously 
furnishes  rules  which  teach  men  to  acknowledge  and 
select  good  laws,  to  shun  evil  laws,  and  to  practice 
the  existing  laws  and  apply  them  skilfully.  Hence, 
Jurisprudence  is  not  only  the  Science  of  Positive 
Laws,  but  is  also  the  art  of  legislation  and  the  prac- 
tice of  advocacy.  A  jurist  may  state  principles  of 
law  in  his  study,  enact  laws  in  the  senate,  or  ad- 
vocate rights  in  the  forum. 

A  science  is  a  collection  of  truths ;  an  art  is  a 
collection  of  rules  for  conduct. 

The  end  of  science  is  truth.  The  end  of  art  is 
work. 

Since  science  is  conversant  about  speculative 
knowledge  only,  and  art  is  the  application  of  knowl- 
edge to  practice,  Jurisprudence,  when  applied  to 
practice,  whether  in  making  of  laws  as  in  legislation, 
or  in  the  actual  working  of  the  law  as  in  advocacy, 
is  an  art ;  but  Jurisprudence,  when  confined  to  the 
theory  of  law,  is  strictly  a  science. 

The  same  term  may  be  strictly  applied  to  both 
the  science  and  its  corresponding  art,  as  logic  is  not 
only  the  science  of  thought,  but  is  also  the  art  of 
reasoning.  So  that  I  may  give  an  example  taken 
from  the  practice  of  the  law — conveyancing  is  the 

JURISPRUDENCE— 4. 


50  JURISPRUDENCE. 

science  and  also  the  art  of  alienation.  If,  by  an  in- 
vestigation of  the  laws  of  property,  we  elicit  and 
systematize  the  principles  which  govern  its  dis- 
position, we  arc  then  forming  the  science.  If  we 
apply  this  knowledge  in  the  alienation  of  property, 
we  are  skillful  in  the  art. 

The  art  may  exist  without  the  corresponding 
science  having  arrived  at  any  degree  of  cultivation. 
If  the  knowledge  applied  to  practice  be  merely  ac- 
cumulated experience,  it  is  empirical ;  but  if  it  be 
illustrated  by  history  and  philosophy,  and  brought 
under  general  principles,  it  becomes  a  science. 
Thus,  Sir  Edward  Coke  was  an  empirical  lawyer  ; 
his  writings  are  a  chaos  of  ill-digested  learning. 
Judge  Story  was  a  scientific  jurist  of  a  high  class, 
who  in  his  works  rises  from  rules  of  practice  to  the 
principles  of  eternal  justice. 

In  every  age  and  country  different  laws  produce 
different  results,  the  same  laws  generally  producing 
the  same  results.  Observing,  then,  the  actions  of 
mankind  differing  in  the  different  grades  of  civiliza- 
tion, it  is  possible  to  estimate  what  rules  for  human 
conduct  in  civil  society  produce  the  most  beneficial 
effects.  If  the  Physical  Sciences  regard  what  is, 
and  the  Mental  Sciences  both  what  is  and  what  ought 
to  be — so  the  jurist,  in  the  investigation  of  the  science 
of  right,  should  strive  to  make  the  actual  law  ap- 
proach the  ideal  of  legal  perfection. 


ETHICS   AND   JURISPRUDENCE.  51 


DISTINCTION  BETWEEN  ETHICS  AND  JURISPRUDENCE. 

Thus,  Jurisprudence  as  an  art,  or  legislation,  lias 
the  same  ratio  to  Jurisprudence  as  a  science  which 
the  rules  of  practical  morality  bear  to  the  Science 
of  Ethics. 

Bentham  has  correctly  denned  the  limits  between 
the  provinces  of  Ethics  and  Jurisprudence.  'Ethics 
exhibits  the  rules  of  three  classes  of  human  actions 
— prudence,  probity,  and  beneficence.  Legislation 
interferes  directly  by  means  of  punishment  only. 
Punishment1  should  not  be  applied  when  it  is  ground- 
less, inefficacious,  unprofitable,  or  needless. 

The  cases  where  the  punishment  would  be  un- 
profitable constitute  the  great  field  for  the  exclusive 
interference  of  Ethics. 

Punishment  as  applied  to  guilt  may  be  unprofita- 
ble in  both  or  either  of  two  ways :  by  the  expense 
to  which  it  would  amount,  even  supposing  it  to  be 
confined  altogether  to  delinquency  ;  or  by  the  danger 
there  may  be  of  involving  the  innocent  in  the  fate 
designed  for  the  guilty. 

Of  the  rules  of  moral  duty,  those  which  stand 
least  in  need  of  the  assistance  of  the  legislator  are 
the  rules  of  prudence.  If  one  err  in  respect  of 
prudence,  it  must  arise  either  from  some  inadvertence 
or  misapprehension  with  regard  to  the  circumstances 
on  which  his  happiness  depends.  The  rules  of  pro- 


52  ETHICS   AND   JURISPRUDENCE. 

bity  are  those  which,  in  point  of  expediency,  stand 
most  in  need  of  legislative  assistance. 

The  idea  of  right  is  the  bond  between  Ethics  and 
Jurisprudence.  Practical  morality  has  been  defined 
to  be  the  art  of  directing  the  actions  of  individual 
men  to  the  production  of  the  greatest  possible 
quantity  of  happiness  by  means  of  such  motives  as 
offer  themselves.  The  art  of  legislation  teaches  how 
a  multitude  of  men  composing  a  community  may  be 
disposed  to  pursue  that  course  which  is  most  con- 
ducive to  the  happiness  of  the  entire  community  by 
means  of  motives  which  are  applied  by  the  legisla- 
tor. Ethics  and  Jurisprudence  differ  in  the  means 
which  they  employ.  They  coincide  in  one  general 
ultimate  end,  the  happiness  of  mankind  by  the  reg- 
ulation of  human  action. 

The  distinction  between  Ethics,  or  the  Science  of 
Moral  Duties,  and  Jurisprudence,  or  the  Science  of 
Positive  Laws,  is  compulsion  by  public  authority. 

And  thus  discussing  Positive  Laws  upon  the  in- 
ductive method — examining  the  different  legislative 
systems  of  different  nations,  and  their  results  upon 
the  happiness  of  mankind — comparing  slavery  with 
freedom,  ignorance  with  knowledge,  accordingly  as 
these  have  been  checked  or  developed  by  the  great 
forces  which  have  swayed  human  destinies — we,  by 
the  observation  of  facts  and  the  use  of  reason,  se- 
lecting the  good,  eloigning  the  bad,  may  gradually 
arrive  at  that  system  of  law  which  is  most  in  con- 
formity with  natural  justice. 


ETHICS   AND   JURISPRUDENCE.  53 

But  the  duties  of  the  jurist  and  the  legislator  are 
perfectly  distinct.  The  business  of  the  jurist  is 
merely  to  state  those  general  principles  which  are 
true  in  all  times  and  under  all  circumstances.  The 
legislator  must  regard  the  historical  development  of 
the  people.  And  it  cannot  be  too  often  repeated  that 
all  actual  legislation  must  be  a  compromise  between 
history  and  philosophy.  No  two  nations  ever  ex- 
isted having  precisely  the  same  standard  of  morality 
embodied  in  their  laws.  In  no  nation  is  the  moral 
standard  the  same  at  different  periods  of  its  devel- 
opment. The  law  is  always  below  the  moral 
standard  of  the  best  citizens,  and  above  that  of  the 
worst.  The  legislator  must  take  heed  that  his  leg- 
islation coincides  with  the  public  opinion  of  the 
mass,  or  the  enforcement  of  a  law  becomes  impossi- 
ble. Thus,  dueling  where  the  issue  was  fatal  was 
murder,  punished  with  death  by  the  common  law  of 
England,  but  the  law  could  not  be  enforced  until 
late  in  the  nineteenth  century. 

There  is  not  in  the  whole  compass  of  human  af- 
fairs so  noble  a  spectacle  as  that  which  is  displayed 
in  the  progress  of  Jurisprudence,  where  we  may 
contemplate  the  cautious  and  unwearied  exertions  of 
a  succession  of  wise  men  through  a  long  course  of 
ages,  withdrawing  every  case  as  it  arises  from  the 
dangerous  power  of  discretion,  and  subjecting  it  to 
inflexible  rules  of  Positive  Law.1 

1  Mackintosh. 


54  LIMITS   OF   JURISPRUDENCE. 

What  can  be  more  instructive  than  to  search  out 
the  first  obscure  and  scanty  fountains  of  that  Juris- 
risprudencc,  which  now  waters  and  enriches  whole 
nations  w^ith  so  abundant  and  copious  a  flood  ;  to 
observe  the  first  principles  of  right  springing  up,  in- 
volved in  superstition  and  polluted  by  violence,  un- 
til, by  length  of  time  and  favorable  circumstances, 
it  has  worked  itself  into  clearness ;  to  view  the 
laws,  sometimes  lost  and  trodden  down  in  the  con- 
fusion of  wars  and  tumults,  and  sometimes  over- 
ruled by  the  hand  of  power — then  victorious  over 
tyranny,  growing  stronger  and  more  decisive  by  the 
violence  they  have  suffered — enriched  even  by  those 
foreign  conquests  which  threaten  their  entire  de- 
struction— softened  and  mellowed  by  peace  and 
religion,  and  improved  and  exalted  by  commerce, 
by 'social  intercourse,  and  that  great  opener  of  the 
mind,  ingenuous  science.1 

LIMITS  OF  JURISPRUDENCE. 

Justice  alone  of  the  virtues  can  be  enforced  by 
the  public  authority.  Jurisprudence  considers  what 
range  of  human  actions  may  come  within  the  cog- 
nizance of  justice,  and  what  rights  are  capable  of 
being  protected  by  the  Positive  Law.  Gratitude 
and  benevolence  are  virtues,  but  incapable  of  being 
enforced  by  legal  means,  whereas,  if  one  citizen  take 

1  Edmund  Burke. 


LIMITS    OF   JURISPRUDENCE.  55 

the  property  of  another,  there  is  compensation,  or 
punishment,  or  both. 

The  true  objects  of  the  Science  of  Jurisprudence 
are  the  knowledge  of  the  legal  relations  which  ought 
to  be  established  by  the  Positive  Law,  and  the  ascer- 
tainment of  the  best  means  to  enforce  such  rela- 
tions. 

These  true  principles  of  Jurisprudence  are  at  the 
very  base  of  the  science  of  politics,  and  the  due 
ascertainment  of  the  province  of  government  is 
perhaps  the  most  important  question  of  modern 
times.  But  the  province  of  government  is  solely 
concerned  with  those  human  actions  which  are 
capable  of  being  enforced  by  the  public  authority. 
It  is  idle  for  a  government  to  try  to  enforce  those 
duties  which  are  incapable  of  being  enforced  by  it. 
Duties  such  as  these  are  not  easy  of  definition,  but 
an  idea  of  them  may  be  obtained  by  an  exhaustive 
process  of  reasoning. 

There  are  certain  virtues  of  exalted  character 
which  can  be  attained  only  by  persons  of  the  most 
splendid  moral  and  physical  organization,  placed  in 
circumstances  where  these  innate  qualities  have  been 
developed  to  the  highest  pitch  of  excellence.  When 
Leonidas  died  for  liberty  and  civilization  in  the  pass 
of  Thermopylas,  he  performed  a  duty  to  mankind ; 
but  what  law  could  enforce  the  self-devotion  of 
which  we  read  the  famous  examples  in  ancient 
history  ? 


56  LIMITS    OF   JURISPRUDENCE. 

That  I  may  take  a  recent  example  :  During  the 
battle  of  Paris,  in  1848,  when  the  Archbishop  of 
Paris  advanced  with  the  crucifix  in  his  hand  to  meet 
the  terrible  Faubourgs  St.  Antoine  and  Marceau, 
careless  about  death,  provided  he  brought  peace,  lie 
was  performing  a  duty,  but  a  duty  incapable  of  en- 
forcement. The  most  exalted  virtues,  exemplified 
in  the  great  actions  which  ennoble  humanity,  are 
attainable  by  few,  and  are  beyond  legislation. 

There  is  another  class  of  virtues  manifested  in 
external  action,  impossible  to  be  enforced  by  legis- 
lative authority.  Virtues  such  as  these  are  less 
difficult  to  attain,  and  are  more  generally  diffused, 
but  still  are  abhorrent  of  compulsion. 

Such  is  the  virtue  of  benevolence. 

Vincent  de  Paul  devoted  his  life  to  the  comfort 
of  the  afflicted.  Las  Casas  toiled  for  years  in  the 
cause  of  the  oppressed  Indians.  Howard  visited  all 
Europe,  not  to  survey  the  sumptuousness  of  palaces 
or  the  stateliness  of  temples ;  not  to  make  accurate 
measurements  of  the  remains  of  ancient  grandeur, 
nor  to  fornva  scale  of  the  curiosity  of  modern  art; 
not  to  collect  medals,  nor  to  collate  manuscripts  : 
but  to  dive  into  the  depths  of  dungeons,  to  plunge 
into  the  infections  of  hospitals,  to  survey  the  man- 
sions of  sorrow  and  of  pain,  to  take  the  gauge  and 
dimensions  of  misery,  depression,  and  contempt,  to 
remember  the  forgotten,  to  attend  to  the  neglected, 


LIMITS    OF   JURISPRUDENCE.  57 

to  visit  the  forsaken,  and  to  compare  and  collate  the 
distresses  of  all  men  in  all  countries.1 

Nor  is  this  exalted  benevolence  confined  to  such 
eminent  persons.  In  our  own  time,  Florence  Night- 
ingale organized  a  band  of  Sisters  of  Charity,  who 
braved  pestilence  in  the  distant  hospitals  of  Scutari, 
that  they  might  afford  relief  to  the  agony  of  our 
wounded  soldiers.  A  name  in  the  page  of  history 
and  the  public  thanks  of  a  nation  are  great  rewards 
for  such  services.  But  many  abandon  the  splendor 
of  a  patrician  life,  the  ties  of  family  and  home,  and 
the  luxuries  of  the  civilization  of  the  nineteenth 
century,  in  order,  living  an  obscure  existence,  to 
console  misery  in  the  abodes  of  the  poor.  Benevo- 
lence, like  friendship  and  gratitude,  is  beyond  legis- 
lation. 

Again,  that  we  may  proceed  from  the  virtues 
which  are  shown  in  relations  with  other  persons  to 
those  virtues  which  chiefly  concern  the  individual — 
the  law  cannot  enforce  prudence,  caution,  self-control 
from  vice,  or  a  proper  disposition  in  the  expenditure 
of  money.  Within  recent  memory,  in  England, 
some  gentlemen  spend  hundreds  of  thousands  in 
supporting  the  Italian  opera,  others  lavish  hundreds 
of  thousands  on  the  turf.  But  the  State  cannot  as- 
sume with  success  the  guardianship  of  fortune. 
Next  to  the  Crown  lands,  the  worst  managed  prop- 
erty possessed  by  the  English  community  is  under 

1  Edmund  Burke. 


58  LIMITS    OF    JURISPRUDENCE. 

the  Receivers  of  the  Court  of  Chancery.  The  law 
cannot  enforce  wisdom  in  managing  one's  own,  or 
beneficence  in  dealings  with  others;  such  things 
must  be  left  to  the  discretion  of  individuals,  to  the 
progress  of  education,  and  to  the  results  of  an  en- 
lightened public  opinion. 

So,  Positive  Law  appears  to  be  powerless  against 
the  vice  of  intoxication,  and  can  only  punish  the 
wretched  drunkard  who  publicly  offends  against 
decency  and  order.  The  vice  of  drunkenness  de- 
pends upon  the  will.  In  recent  times,  two  great 
aids  have  been  discovered  to  assist  the  drunkard's 
will — the  use  of  a  limited  period  in  abstinence,  and 
sympathy  or  fellow-feeling  in  abstinence.  The 
greatest  drunkards  can  abstain  from  drink  if  the 
time  of  abstinence  be  definitely  fixed,  so  that  they 
can  look  forward  to  a  period  when  they  can  use 
their  liberty  again.  Next  comes  the  aid  of  sym- 
pathy. Men  can  do  together  and  in  company  what 
they  cannot  do  by  themselves.  Anything  that  is 
difficult  to  do,  any  exertion  of  resolution,  any  kind 
of  self-denial,  is  made  easier  by  the  aid  of  sympathy, 
by  knowing  that  other  persons  are  feeling  and  doing 
the  same  thing.  Father  Mathew  and  other  leaders 
of  the  temperance  movement  in  England  and  Ireland 
well  understood  this  principle  of  human  nature 
when  they  organized  the  votaries  of  temperance 
into  an  army  with  medals,  bands,  and  banners.  But 


LIMITS    OF   JURISPRUDENCE.  59 

no  law  has  ever  been  successful  in  preventing  the 
vice  of  drunkenness. 

Now,  if  it  be  impossible  to  enforce  by  public 
authority,  first,  the  most  exalted  virtues  ;  secondly, 
dispositions  toward  others,  such  as  benevolence  and 
friendship ;  thirdly,  virtues  belonging  to  the  class 
of  prudence  and  self-control,  how  much  more  im- 
possible must  it  be  to  force  the  individual  sentiments 
of  the  mind  into  the  particular  form  ordained  by 
any  human  law.  Yet  in  this  last  particular  how 
many  governments  have  erred ! 

But  the  individual  acts  of  the  mind  are  independ- 
ent, and  belief  of  anything  rests  upon  the  amount 
of  evidence  offered  in  respect  of  the  fact  to  be 
proved,  and  the  natural  capacity  of  the  mind  for 
judgment.  Belief  is  independent  of  the  will. 

At  present,  by  the  universal  consent  of  civiliza- 
tion, what  is  involuntary  deserves  neither  reward 
nor  punishment  at  the  hands  of  the  magistrate  ;  but 
through  the  history  of  all  nations,  in  the  examples 
of  religious  persecution  is  seen  the  fearful  amount 
of  misery  caused  by  persons  invested  with  the 
supreme  power  attempting  to  enforce  belief — a  thing 
incapable  of  being  enforced.  And  this  alone  is  suf- 
ficient to  show  the  importance  of  ascertaining  the 
province  of  government — the  importance  of  the 
Science  of  Jurisprudence. 


60  DEVELOPMENT  OF   SYMPATHY. 


DEVELOPMENT   OF   SYMPATHY 

The  end  of  government  is  the  security  of  rights. 
The  natural  rights  of  man  are  life,  liberty,  and  prop- 
erty. To  protect  these  rights  has  been  the  professed 
and  real  object  of  all  the  systems  of  civil  polity  that 
ever  illumined  the  world  with  a  ray  of  freedom. 
These  rights,  in  the  first  beginnings  of  civilization, 
are  not  only  practically  insecure,  but,  even  in  theory, 
are  imperfectly  acknowledged.  Where  slavery  still 
exists  these  rights  are  imperfect.  The  aggressive 
wars  of  our  own  times  show  that  the  rights  of  stran- 
gers to  their  lives  and  property  are  not  yet  perfectly 
admitted  by  the  civilized  States  of  the  world. 

The  theory  of  Hobbes  is  not  wholly  wrong,  that, 
agreeably  to  the  lowest  law  of  nature,  man  aims  at 
the  injury  of  his  neighbor  when  a  stranger  to  him. 
To  savages,  all  strangers  are  enemies;  everything 
unknown  is  an  object  of  fear — Omne  ignotum  pro 
horribili.  In  all  languages,  the  same  word  originally 
signified  both  stranger  and  enemy.  But  the  more 
persons  know  one  another,  they  generally  love  one 
another  the  more. 

During  the  progress  of  civilization  the  sympathy 
of  man  for  his  fellow-creatures  extends  in  an  ever- 
widening  circle.  At  first,  none  but  immediate  rel- 
atives are  held  entitled  even  to  the  common  rights 
of  life  and  property.  Slaves  are  without  rights. 
But  in  the  advanced  nations  a  poor-law  provides  for 


DEVELOPMENT   OF   SYMPATHY.  61 

even  the  outcasts  of  society,  and  humane  legislation 
prevents  cruelty  to  animals. 

The  first  nucleus  of  society  must  have  been  the 
family,  although  nowhere  in  savage  life  has  an 
isolated  family  been  discovered  unconnected  with 
others  by  language  or  kindred.  The  existence  of 
language  proves  that  everywhere  men  exist  in  in- 
tellectual communities. 

The  family  develops  into  the  tribe.  *Men,  whilst 
in  the  stage  of  the  tribe,  fanatically  regard  its  inter- 
ests beyond  anything  else.  They  do  not  yet  recog- 
nize the  positive  rights  of  other  men,  belonging  to 
other  tribesvto  their  lives,  liberties,  and  properties. 
They  do  not  hesitate  to  rob  and  murder  persons  even 
belonging  to  neighboring  tribes,  speaking  the  same 
language,  and  having  the  same  national  origin. 
Thus,  the  Arabian  tribes  were  engaged  in  mutual 
war  before  Mahomet  for  a  time  united  them.  The 
right  of  private  war  between  the  feudal  barons  was 
one  of  the  most  difficult  to  be  abolished.  The  clans 
of  the  Scottish  Highlands,  up  to  the  time  of  their 
disorganization,  maintained  the  right  of  private  war. 
The  Indian  tribes  of  North  America  still  massacre 
one  another  when  opportunity  may  offer.  The  petty 
tribes  and  nations  of  Africa  still  are  engaged  in 
deadly  mutual  strife,  scarcely  interrupted  by  their 
common  danger  from  the  superior  arms  and  civiliza- 
tion of  the  Europeans.  Yet  during  this  phase  the 
tribes  of  the  same  race  in  process  of  time  regard  one 


62  DEVELOPMENT    OF    SYMPATHY. 

another  with  less  animosity  than  they  regard  persons 
belonging  to  other  races.  The  Berbers  of  Northern 
Africa  are  sometimes  mutually  at  peace,  but  toward 
Christians  they  entertain  perpetual  hostility.  They 
rob  and  murder  Christians  whenever  an  opportunity 
may  offer ;  nor  do  they  perceive  that  they  violate 
any  natural  right,  or  transgress  any  natural  duty. 

Sympathy  develops  from  the  tribe  to  the  nation, 
and  thence  to  the  race.  The  word  dy/uos  originally 
means  parish;  democracy  now  means  the  govern- 
ment by  a  people.  In  ancient  Greece,  though  piracy 
at  first  was  not  a  dishonorable  profession,  the  rights 
of  all  Hellenes  were  finally  recognized  ;  but  the  rest 
of  mankind  were  still  considered  barbarians,  perpet- 
ual enemies,  without  natural  rights  to  life,  liberty,  or 
property.  The  Roman  citizen  united  many  nations, 
but  warred  upon  the  rest  of  the  ancient  world.  The 
Proconsul  in  the  Roman  theater  applauded  the  sen- 
timent: "Homo  sum,)  Jiumani  nil  a  me  alien um 
puto"  but  he  disregarded  it  in  the  foreign  province. 
Still  the  acknowledgment  of  the  rights  of  humanity, 
and  the  consequent  fusion  of  races,  unceasingly  pro- 
ceed. In  modern  Europe,  the  different  States  of 
France,  once  independent,  fiave  coalesced  into  one. 
The  old  kingdoms  of  Spain  are  now  under  one 
government.  The  British  Islands,  in  which  have 
existed  such  diversities  of  races  and  language,  arc 
now  a  United  Kingdom.  Most  of  the  Sclavonic 
races  have  coalesced  under  the  Empire  of  Russia. 


DEVELOPMENT  OF  SYMPATHY.        03 

The  disorganization  and  re-organization  of  Europe 
simultaneously  proceed.  The  equilibrium  of  States 
is  overthrown,  whilst  the  harmony  of  nationalities  is 
constituted.  Italy  is  under  one  government.  The 
Germans  have  obtained  national  unity  under  their 
Empire. 

Such  is  the  development  of  sympathy  proceeding 
upon  the  more  ancient  idea  of  the  bond  of  union 
existing  between  family,  tribe,  nation,  and  race, 
both  for  aggressive  and  defensive  purposes. 

Another  development  of  sympathy,  more  based 
on  reason,  arises  from  the  recognition  of  the  equal 
rights  of  all  men,  as  citizens  of  the  world,  to  share 
in  the  gifts  of  providence.  Commerce  and  emigra- 
tion are  the  two  great  agents  by  which,  in  modern 
times,  the  clannish  distinctions  of  nation  or  race  are 
obliterated. 

Amongst  the  races  of  men  whilst  in  an  imperfect 
state  of  development,  the  tie  of  country  is  so  strong 
that  nothing  but  the  most  positive  evils  of  war,  pes- 
tilence, and  famine  will  compel  them  to  abandon 
their  native  land. 

In  civilized  countries,  the  poor  may  be  divided  in- 
to three  principal  classes.  The  first  and  least  nu- 
merous is  composed  of  those  wretched  beings,  who, 
from  organic  deformity,  whether  manifested  in  mind 
or  body,  are  unable  to  earn  their  bread  ;  with  them 
may  be  comprised  the  aged  and  infirm.  The  next 
class  is  composed  of  the  wicked  and  idle,  who  refuse 


04        DEVELOPMENT  OF  SYMPATHY. 

to  labor  for  their  subsistence,  and  who,  not  possess- 
ing realized  property  of  their  own,  are  supported  by 
the  labor  and  charity  of  their  friends.  The  third 
and  most  numerous  class  consists  of  the  great  masses 
of  mankind,  descendants  of  savages,  who  as  yet 
have  scarce  emerged  from  primitive  barbarism,  and 
who,  through  ignorance  of  the  methods  of  life, 
linger  always  upon  the  verge  of  starvation. 

The  last  division  includes  the  great  majority  of 
the  poor  in  every  country. 

Ignorance  has  been  the  great  check  to  prevent  the 
poor  from  emigration.  Men  rather  bear  the  ills 
they  have  than  fly  to  others  they  know  not  of.  But 
education  has  dissipated  much  of  old  prejudice. 
The  German,  English,  and  Irish  poor  know  that  be- 
yond the  Atlantic  exists  a  continent  where  laws 
similar  to  their  own  are  better  and  more  cheaply 
administered,  and  where  there  is  plenty  of  good 
land  to  be  had  at  a  low  rate.  The  more  gov  the 
more  will  go,  until  the  rate  of  wages  and  the  rent 
of  land  will  approximate  in  Europe  and  America. 

The  beneficial  effects  of  the  great  European  emi- 
gration to  America  and  Australia  in  the  nineteenth 
century  can  scarcely  be  overrated.  Through  this 
emigration  millions  emerged  from  poverty  into  the 
position  of  wealthy  citizens.  The  next  great  ad- 
vantage to  the  human  family  must  spring  from  the 
fusion  of  races.  The  more  the  population  is  mixed 
the  more  prosperous  will  be  the  country.  This  re- 


DEVELOPMENT  OF  SYMPATHY.        65 

suit  arises  from  the  principle  of  the  division  of  la- 
bor. Individual  races  excel  in  some  qualities,  and 
are  deficient  in  others.  The  French,  Italians,  Ger- 
mans, Sclaves,  and  English  of  the  present  day  each 
have  their  different  qualities  in  which  they  severally 
surpass  the  rest ;  and  if  they  were  fused  into  one 
community  of  the  United  States,  would  each  apply 
themselves  solely  to  those  departments  of  human 
skill  and  industry  in  which  they  are  superior.  This 
principle  has  long  since  been  perceived,  and  termed 
the  territorial  division  of  labor.  But  it  never  can 
be  completely  developed  whilst  men  remaining  un- 
der different  governments  are  separated  by  interna- 
tional tariffs,  custom-houses,  and  wars. 

In  effect,  pure  races,  like  the  Turks,  languish  and 
become  etiolated.  The  most  flourishing  communi- 
ties, like  the  city  of  Romulus,  have  sprung  ex  collu- 
vione  gentium.  In  the  mythical  story  of  the  foun- 
dation of  Rome,  Livy  tells  us  that  the  founder 
opened  an  asylum  for  fugitives — the  political  refu- 
gees of  the  neighboring  petty  States  of  Etruria  and 
Latium.  All  the  young  men  for  whom  society  in 
those  States  provided  no  employment,  and  who  be- 
came its  enemies  in  consequence,  as  naturally  as  the 
sparks  fly  upward,  fled  to  the  protection  of  the 
seven  hills  of  Rome.  England  has  owed  much  of 
her  greatness  to  being  a  similar  asylum.  Hither 
have  fled  the  artisans  of  the  Netherlands  and  France 
from  the  terror  of  the  Duke  of  Alva  and  Louis 

JURISPRUDENCE — 5. 


G6  DEVELOPMENT    OF    SYMPATHY. 

XIV,  whilst  the  modern  Englishman  is  the  result  of 
the  Celt,  the  Roman,  the  Saxon,  and  the  Norman. 

In  thus  mentioning  different  races,  I  do  not  insist 
upon  the  intrinsic  superiority  of  one  race  over  an- 
other;  nor  do  I  use  the  term  "  race  "  to  denote  differ- 
ence of  origin.  At  the  present  time,  certain  aggre- 
gations of  individuals  have  developed  peculiar 
mental  and  physical  qualities,  and  use  different  lan- 
guages. So  they  are  termed  races.  To  a  great  ex- 
tent, intellect  and  beauty  depend  on  the  advantages 
of  good  food  and  climate.  Some  races  are  at  the 
height  of  prosperity  ;  others  in  the  lowest  depths  of 
degradation.  The  primitive  causes  of  these  things 
we  know  no  more  than  the  causes  which  have  sunk 
Atlantic  continents  into  the  seas,  and  raised  the 
Alps  from  the  abysses  of  some  primeval  ocean. 
But  St.  Paul  said  at  Athens,  "  God  hath  made  of 
one  blood  all  mankind  to  dwell  upon  the  face  of  the 
earth."  In  the  lowest  Australian  savage  exists  the 
germ  of  the  intellect  of  Socrates,  of  Caesar,  of  Ba- 
con, of  Newton,  of  Napoleon.  From  the  most  un- 
sightly Esquimaux  at  the  pole,  or  negro  of  the 
tropics,  may,  in  the  process  of  centuries,  be  devel- 
oped forms  of  godlike  strength  and  beauty,  like  the 
living  models  of  the  Athenian  sculptor.  Even  in 
recent  historical  memory,  the  splendid  Magyar  aris- 
tocrat came  from  Asia — a  Tartar  savage — his  lan- 
guage and  origin  the  same  as  those  of  the  Lap- 
landers and  Ostiaks.  The  Daco-Romans  of  Trail- 


DEVELOPMENT    OF    SYMPATHY.  67 

sylvania  are  the  descendants  of  the  Romans  who 
conquered  and  colonized  the  ancient  world.  But  a 
thousand  years  of  prosperity  have  changed  the 
Magyar  into  one  of  nature's  finest  types  of  man. 
Under  a  thousand  years  of  oppression  the  Rouman 
peasantry  have  much  degenerated  from  the  type  of 
the  ancient  Roman 'legionary. 

For  the  polished  Athenian,  for  the  Roman  citizen, 
for  the  feudal  lord,  sympathy  with  mankind  did  not 
exist.  The  stage  of  civilization  at  which  no  nation 
has  yet  arrived — to  which  all  nations  have  a  slow 
but  certain  tendency — is  that  in  which  men  shall  en- 
tertain the  same  sympathy  toward  all  mankind 
which  has  been  felt  by  them  for  family,  tribe,  na- 
tion, race ;  in  which  the  crime  of  killing  a  stranger 
in  aggressive  war  shall  be  regarded  as  murder  is 
now  regarded ;  in  which  the  liberty  of  the  individ- 
ual shall  be  completely  developed,  and  in  which  the 
absolute  power  of  individual  governments  disap- 
pearing under  international  systems,  men,  true  citi- 
zens of  the  world,  shall  possess  over  the  earth  their 
rights,  and  by  the  law  the  means  of  enforcing  them. 

Still,  although  all  human  races  upon  the  earth 
are  in  a  state  of  progress  tending  toward  the  same 
legal  civilization,  there  need  be  no  apprehension 
that  the  nations  of  the  world  will  so  fall  into  one 
sink  of  level  avarice.  The  gifts  of  nature  are  va- 
riously scattered  amongst  the  children  of  great 
national  families,  and  the  brilliant  variety  of  genius. 


68  DEFINITIONS   IN   JURISPRUDENCE. 

taste,  and  imagination  in  races  constitutes  the  splen- 
dor of  mankind.  The  types  of  nationalities  disap- 
pear with  difficulty,  and  there  is  in  nature  one  uni- 
form variety.  Grandeur  and  beauty  would  vanish 
from  the  earth  if  it  were  smoothed  into  level  plain- 
ness. As  the  soldiers  of  all  civilized  nations  use 
the  same  arms,  so  once  that  the  laws  shall  be  dis- 
covered under  which  we  best  may  live  in  happiness, 
all  nations  in  a  similar  state  of  civilization  will 
adopt  them.  But  the  glorious  diversity  of  man- 
kind must  ever  still  proceed. 


DEFINITIONS  IN  JURISPRUDENCE  HISTORICALLY 
CONSIDERED. 

Jurisprudence  embraces  a  great  portion  of  what 
has  been  considered  by  various  writers  under  the 
heads  of  Ethics,  Polity,  Political  Philosophy,  and 
Political  Economy.  Writers  on  Political  Economy, 
in  particular  Adam  Smith  and  John  Stuart  Mill, 
have  discussed  in  their  economical  works  many  of 
the  subjects  of  Jurisprudence.  But  Political  Econ- 
omy is  only  the  science  of  exchanges.  It  has  de- 
veloped the  great  principle  that  exchanges  should 
be  free.  Political  Economy,  starting  from  this 
principle,  teaches  as  its  corollaries  that  the  perma- 
nent and  regular  increase  of  human  comfort  is 
grounded  upon  the  absence,  so  far  as  depends  on 
law,  of  all  favored  classes,  professions,  and  pursuits ; 


DEFINITIONS   IN   JUKISPEUDENCE.  69 

in  the  equal  protection  afforded  by  the  law  to  every 
citizen,  and  the  unrestricted  liberty  of  spending  as 
he  pleases  his  honest  earnings.  It  teaches  that  the 
machinery  of  trade  and  commerce  should  be  left 
free ;  that  every  system  of  restrictions  or  prohibi- 
tions on  commercial  intercourse  cuts  off  the  foreign 
market,  diminishes  the  number  of  our  buyers  and 
the  demand  for  our  produce,  and  so  checks  produc- 
tion. It  teaches  that  all  men  should  be  permitted, 
without  the  interference  of  their  government,  to 
produce  whatever  they  consider  it  most  to  their  in- 
terest to  produce;  that  they  should  not  by  law  be 
prevented  from  producing  one  thing,  or  by  law  be 
bribed  to  produce  another ;  that  they  should,  so  far 
as  is  consistent  with  public  morality,  be  left  alone, 
and  allowed  to  follow  their  own  interests  as  they 
please. 

But  law  has  been  only  recently  illustrated  by  its 
kindred  sciences ;  very  recently  the  existence  of  a 
science  of  society  has  been  suspected  ;  but  recently 
has  Political  Economy  or  Jurisprudence  been  taught 
in  the  universities  of  the  United  Kingdom  of  Great 
Britain  and  Ireland.  However,  the  general  prog- 
ress of  society  has  told  upon  the  progress  of  Juris- 
prudence in  the  British  Islands.  Our  criminal  law 
has  made  wise  and  merciful  progress  from  the  time 
when  trial  by  ordeal  and  battle  existed — from  the 
time  when  mute  prisoners  were  pressed  to  death — 
from  the  time  when  Sir  Edward  Coke  prosecuted 


70  DEFINITIONS    IN   JURISPRUDENCE. 

Sir  TTalter  Raleigh — from  the  time  of  Chief  Jus- 
tice Jeffrey's  bloody  western  assize — from  the  time 
when  prisoners  were  not  allowed  counsel  to  speak 
in  their  defense.  So  from  the  period  when  Lord 
Mansfield  presided  in  the  King's  Bench,  the  doc- 
trine and  practice  of  our  commercial  law  have 
been  rapidly  extended  and  improved.  From  the 
reign  of  William  IV,  the  law  of  real  property  in 
England  is  undergoing  a  process  of  wise  and  bene- 
ficial reform.  Independently  of  legal  science,  the 
progress  of  the  nation  in  wealth  and  the  arts  intro- 
duces new  species  of  property,  and  necessitates 
cheap  and  expeditious  forms  of  procedure. 

Still  science  aids  the  progress  of  society,  and 
a  knowledge  of  law  is  incomplete  without  the 
knowledge  of  what  Bacon  terms  the  law  of  laws — 
leges  legum.  One  of  the  chief  uses  of  Social  Sci- 
ence is  to  teach  clever  men  to  do  rapidly  what  ages 
with  difficulty  accomplish  by  the  involuntary  action 
of  mankind.  As  Sir  Edward  Coke  says,  the  reason 
of  the  law  is  the  life  of  the  law — for  although  a 
man  can  tell  the  law,  if  he  knows  not  the  reason 
thereof  he  shall  soon  forget  his  own  superficial 
knowledge.  But  when  he  finds  the  right  reason  of 
the  law,  and  so  brings  it  to  his  natural  reason  that 
he  comprehends  it  as  his  own,  this  will  not  only 
serve  him  for  the  understanding  of  that  particular 
case,  but  of  many  others.  The  knowledge  of  law 
is  complicated.  To  know  is  properly  to  understand 


DEFINITIONS   IN   JURISPRUDENCE.  71 

a,  thing  by  reason,  and  through  its  causes  :  Cognitio 
legis  est  copulata  et  complicata.  Scire  autem  est 
proprie  rem  ratione  et  per  causam  cognoscere. 

It  has  been  maintained  by  many  that  politics  and 
laws  cannot  be  reduced  into  a  science  :  the  ancient 
Sophists  were  of  opinion  that  there  were  no  such 
things  as  right  and  wrong  by  nature,  but  only  by  con- 
vention. That  which  appears  just  and  honorable 
for  each  city  is  so  for  that  city  so  long  as  the  opin- 
ion is  entertained,  was  one  of  their  maxims.  The 
opinions  of  the  Sophists  may  have  been  exaggerated 
by  their  great  opponent,  Plato  :  still,  I  believe  they 
did  protest  energetically  against  the  possibility  of 
metaphysical  science,  whilst  Plato,  against  them, 
maintained  in  the  doctrine  which  Pope  has  poet- 
ically translated : 

"All  nature  is  but  art  unknown  to  thee; 
All  chance,  direction  which  thou  canst  not  see; 
All  discord,  harmony  not  imderstood; 
All  partial  evil,  universal  good." 

The  possibility  of  metaphysical  science,  and,  in 
particular,  of  the  complete  development  of  a  science 
of  law  and  government,  is  now  admitted.  The 
great  system  of  Jurisprudence,  says  Sir  William 
Jones,  like  that  of  the  universe,  consists  of  many 
subordinate  systems,  all  of  which  are  connected  by 
nice  links  and  beautiful  dependencies,  and  each  of 
which  is  reducible  to  a  few  plain  elements.  If  law 
be  a  science,  and  really  deserves  so  sublime  a  name, 


1'2  DEFINITIONS   IN   JURISPRUDENCE. 

it  must  be  grounded  upon  principle,  and  claim  an 
exalted  rank  in  the  empire  of  reason ;  but  if  it  be 
merely  an  unconnected  series  of  decrees  and  ordin- 
ances, its  use  may  remain,  though  its  dignity  may 
be  lessened  ;  and  he  will  become  the  greatest  law- 
yer who  has  the  greatest  natural  or  artificial  mem- 
ory. 

So  Edmund  Burke  has  said  that  we  are  all  born 
in  subjection,  all  born  equally,  high  and  low,  gov- 
ernors and  governed :  in  subjection  to  one  great 
immutable  and  predestined  law — prior  to  all  our  de- 
vices and  prior  to  all  our  contrivances — paramount 
to  all  our  ideas  and  all  our  sensations — antecedent  to 
our  very  existence,  by  which  we  are  knit  and  con- 
nected with  the  eternal  frame  of  the  universe,  out 
of  which  we  cannot  stir.  And  he  has  described  the 
Science  of  Jurisprudence  as  the  pride  of  the  intel- 
lect, the  collected  wisdom  of  ages — combining  the 
principles  of  original  justice  with  the  infinite  vari- 
ety of  human  concerns. 

So,  also,  Vico  considered  that  the  development  of 
society,  like  the  heart  of  man,  was  subject  to  one 
constant,  universal,  and  divine  law ;  the  variable 
application  and  progress  of  which  depended  upon 
the  uncertain  will  and  erring  nature  of  man  ;  and 
he  hence  conceived  the  hope  of  discovering  the 
eternal  principles  of  the  natural  law. 

In  Jurisprudence,  a  law,  properly  so-called,  is  a 
rule  of  conduct  addressed  to  creatures  capable  of 


DEFINITIONS   IN  JURISPRUDENCE.  73 

feeling  an  obligation  by  means  of  reason ;  or  a  law 
may  be  defined  as  a  general  command  given  by  one 
intelligent  being  to  another. 

St.  Thomas  Aquinas  defined  law  as  a  certain  rule 
and  measure  according  to  which  any  agent  is  led  to 
act  or  restrain  from  acting :  Lex  est  qucedam  regula 
et  mensura,  secundum  quam  inducitur  aliquis  ad 
agendum,  vet  ab  agenda  retrahitur.  This  definition 
is  plainly  too  indefinite  and  extensive.  Suarez  gives 
another  description,  and  says  a  law  is  a  certain 
measure  of  moral  acts,  of  such  a  kind  that  by  con- 
formity to  it  they  are  morally  right ;  by  discordance 
with  it,  morally  wrong :  Lex  est  mensura  qucedam 
actuum  moraliam,  ita  ut  per  conformitatem  ad  illam 
rectitudinem  moralem  Jiabeant^  et  si  ab  ilia  discordent 
obliqui  sunt. 

Up  to  the  present  time,  four  great  divisions  of  law 
have  been  enumerated  by  jurists :  Divine  Law, 
Natural  Law,  International  Law,  and  Positive  Law. 

With  the  pagan  philosophers,  following  Plato,  the 
Divine  Law  was  the  sovereign  reason  existing  in  the 
mind  of  God. 

The  doctors  of  the  Middle  Ages  termed  this 
principle  of  nature  the  Eternal  Law.  The  Divine 
Law,  with  Plato,  is  the  governing  reason  existing  in 
the  mind  of  the  Universal  Deity,  which  theologians 
also  acknowledge,  but  call  the  Eternal  Law.  Lex 
ergo  divina  apud  Platonem  est  ratio  gubernatrix 
universi  in  Dei  mente  existens,  quam  legem  etiam 


74  DEFINITIONS    IN    JURISPRUDENCE. 

TJieologi  agnoscunt  serf  leg  cm  wtcrnam  appellant* 

The  Positive  Divine  Law  is  that  which  has  been 
immediately  promulgated  by  God.  Lex  posit  mi 
divina  dicitur,  quce  ab  ipso  Deo  immediate  lain  c*t 
ct  toti  Icyi  naturali  addita.  Our  duty  as  to  the  Di- 
vine Law  is  simply  to  know  it  and  obey  it. 

The  Natural  Law,  according  to  Grotius,  consists 
in  certain  principles  of  rectitude  of  reason,  which 
enable  us  to  know  whether  an  action  is  morally  right 
or  wrong  according  to  its  congruity  with  a  reasona- 
ble and  social  nature.  Jus  naturale  est  d let < it  urn 
rectce  rationis  indicans  actui  alicui,  ex  ejn*  cotircni- 
entia  vel  disconvenientia  cum  ipsd  naturd  rution<tH, 
incsse  moralem  turpitudinem  aut  necessitatem  mora- 
Icm,  et  consequenter  ab  auctore  naturae  ipso  dco  talem 
actum  aut  vetari  aut  prozvipi.  The  Natural  Law  is 
thus  considered  under  two  aspects  :  first,  its  nature 
and  essential  qualities  ;  secondly,  its  obligatory  force. 

Grotius  compiled  this  definition  from  the  previous 
authorities.  But  in  Jurisprudence  it  can  scarcely 
be  adopted  as  correct.  This  definition  of  Natural 
Law  embraces  the  whole  sphere  of  both  moral  and 
legal  duty..  In  Jurisprudence,  however,  Natural 
Law  cannot  include  so  wide  a  circle.  It  only  in- 
cludes the  rights  and  duties  capable  of  being  en- 
forced by  the  power  of  the  State. 

It  is  most  important  in  legislation  to  avoid  inter- 
meddling with  the  peculiar  province  of  Ethics  or 
Divinity.  The  Divine  Law  is  the  province  of  the 


DEFINITIONS    IN    JURISPEUDENCE.  75 

theologian,  Ethics  is  the  province  of  the  moral  phil- 
osopher. Neither  uses  the  compulsion  which  it  is 
the  province  of  the  legislator  to  employ. 

Natural  Law  may  accordingly  be  correctly  defined 
as  the  theory  of  that  part  of  our  duties  which,  in 
reason  and  equity,  is  capable  of  being  exacted. 

On  the  other  hand,  if  Jurisprudence  be  viewed  as 
only  one  branch  of  the  Social  Science  whose  object 
is  to  ascertain  the  great  natural  law  of  the  progress 
and  development  of  society,  and  according  to  what 
laws  men  may  best  live  in  happiness — then  Juris- 
prudence may  be  held  to  include  the  entire  domain 
of  the  rights  and  duties  which  come  within  the 

O 

province  of  Positive  Law,  Ethics,  and  Theology. 
The  definition  of  St.  Chrysostom  might  then  be 
adopted,  that  Natural  Law  is  the  instinctive  knowl- 
edge of  good  and  evil  (*tvro6&axrot  ?/  yvo5Si$  r&v 
naXf^Vy  nal  roar  ov  roiovroov^).  As  civilization  pro- 
ceeds, Jurisprudence  continually  encroaches  upon 
the  kindred  sciences,  and  embraces  an  ever-widening 
range  of  social  rights  and  obligations.  I  repeat  an 
illustration.  In  the  early  ages  of  society,  human 
slaves  have  no  rights.  In  modern  times,  animals 
are  recognized  as  having  a  right  to  good  treatment, 
and  cruelty  is  punished  by  the  Positive  Law. 

The  purposes  of  laws  were  distinguished  by 
Modestinus:  to  command,  to  forbid,  to  permit,  or 
to  punish. 

The  laws  rendered  effectual  by  rewards  were  de- 


76  DEFINITIONS   IN   JURISPRUDENCE. 

fined  to  be  of  two  species :  first,  those  the  object  of 
which  is  to  induce  men  to  do  something  which  all 
men  are  unable  to  do — such  as  those  which  offer  a 
reward  for  scientific  inventions ;  secondly,  those 
laws  the  object  of  which  is  to  make  men  more  vig- 
ilant in  the  performance  of  legal  duties,  or  in  the 
enforcing  of  other  laws — such  as  laws  offering  re- 
wards for  the  detection  of  offenders. 

The  civilians  attempted  to  point  out  the  laws 
made  by  States  not  conformably  to  the  law  of  na- 
ture ;  thus,  slavery  was  described  as  an  institution 
of  the  law  of  nations  contrary  to  the  law  of  nature. 
Domat,  following  the  civilians,  has  divided  all  laws 
into  immutable,  and  mutable,  or  arbitrary.  The 
former  are  defined  as  those  which,  being  principles 
of  the  law  of  nature,  cannot  be  changed  without 
violating  those  natural  obligations  upon  which  the 
order  of  society  is  founded ;  the  latter  are  defined 
as  those  which  are  not  principles  of  Natural  Law, 
and  which,  as  they  are  not  essential  to  the  obliga- 
tions in  which  society  is  founded,  may  be  changed 
without  violating  those  obligations. 

These  definitions  arc  erroneous.  In  one  stage  of 
society,  slavery  is  as  natural  as  freedom  in  another 
stage.  In  barbarous  countries,  order  cannot  be  main- 
tained without  a  despotism  impossible  in  free  coun- 
tries. Tyranny  is  equally  the  result  of  the  natural 
law  of  one  stage  of  society,  as  liberty  is  of  another. 
The  problem  of  society  is  to  combine  order  with 


DEFINITIONS   IN  JURISPRUDENCE.  77 

freedom.  According  to  a  natural  law,  society  ap- 
pears to  progress  from  barbarism  to  civilization ; 
and  to  assist  that  progress,  the  Social  Sciences  con- 
tribute their  aid  by  ascertaining  under  what  positive 
laws  men  in  their  present  stage  of  civilization  best 
may  live  in  happiness. 

There  have  been  thus  two  principal  definitions  of 
Natural  Law.  The  Institutes  define  Natural  Law  as 
that  which  nature  has  taught  to  animals.  The  In- 
stitutes assert  that  this  law  belongs,  not  to  the  hu- 
man race  alone,  but  to  all  animated  beings  which 
are  produced  in  the  heavens,  the  earth,  or  the  sea. 
This  is  erroneous,  because  in  Jurisprudence  nothing 
can  be  properly  called  a  law,  except  a  rule  of  con- 
duct addressed  to  and  binding  on  creatures  capable 
of  feeling  an  obligation  by  means  of  reason.  Cicero, 
on  the  other  hand,  says  :  Ex  qua  ilia  lex  quam  Dei 
humano  generi  dederunt  recte  est  laudata  ;  est  enim 
ratio  mensque  sapientis  adjubendum  et  ad  deterren- 
dum  idonea. 

The  definition  of  Justinian  is  not  a  legal  defini- 
tion, but  one  which  might  be  placed  as  an  axiom  for 
any  science.  But,  again  I  repeat,  Natural  Law,  le- 
gally defined  as  a  subject  of  Jurisprudence,  is  the 
theory  of  those  duties  capable  of  being  enforced. 

The  fundamental  principle  and  starting  point  of 
Natural  Law  is  the  natural  equality  of  the  rights  of 
all  men.  But  in  society  this  theoretical  equality  is 
speedily  destroyed  by  the  diversity  of  their  respect- 


78  DEFINITIONS    IX   JURISPRUDENCE. 

ivc  and  reciprocal  duties  and  rights,  as  members  of 
families,  as  reasonable  beings  living  under  tlie  social 
state,  and  as  having  voluntarily  entered  into  and 
contracted  obligations  with  one  another  by  express 
or  tacit  consent. 

The  Natural  Law  includes  all  the  principles  of 
right  common  to  just  men  living  in  civilization. 
And  the  doctors  of  the  Middle  Ages,  accordingly, 
have  denned  Natural  Law  as  the  principle  in  the  hu- 
man mind  by  which  the  just  is  discerned  from  the 
unjust.  Thus,  Suarez  says :  The  Natural  Law  which 
pertains  to  moral  philosophy  and  theology  is  that 
which  is  seated  in  the  human  mind  to  distinguish 
good  from  bad.  Lex  ergo  naturalis  propria  quce 
ad  moralem  doctrinam  et  tJieologiam  pertinet,  est  ilia 
quce  Jiumance  menti  insidet  ad  discernendum  hon- 
estum  a  turpi. 

Positive  Law  is  the  law  of  human  enactment.  It 
is  called  Positive  as  existing  by  position.  For  hence 
it  is  called  Positive  as  it  were  added  to  Natural  Law, 
not  necessarily  flowing  from  it.  Whence  by  some 
it  is  called  fixed  law.  Inde  enim  positiva  dicta  est 
quasi  addita  naturali  legi  non  ex  ilia  necessario  ma- 
nans.  Uhde  ab  aliquibus  jus  positum  vocatur. 
With  former  jurists,  and  before  the  importance  of 
International  Law  was  recognized,  Positive  Law 
was  held  to  mean  the  law  enacted  by  the  sovereign 
government  of  an  independent  political  society.  It 
must  now  be  taken  to  include  also  International 


DEFINITIONS   IN   JURISPRUDENCE.  79 

Law,  so  far  as  the  latter  is  capable  of  being  ascer- 
tained and  enforced.  The  element  of  compulsion 
to  obedience  through  the  public  force  distinguishes 
the  Positive  Law  from  all  others  enumerated  by 
jurists  or  moralists. 

Sir  William  Blackstone  and  others  have  termed 
this  species  of  law  Municipal  Law.  But  the  term 
is  inappropriate.  Derivatively,  the  word  "  munici- 
pal" refers  to  a  corporate  town.  Blackstone  defines 
Municipal  Law — or,  as  it  should  be  termed,  Posi- 
tive Law — as  a  rule  of  civil  conduct  prescribed  by 
the  supreme  power  in  a  State,  commanding  what  is 
right  and  prohibiting  what  is  wrong. 

Now,  the  error  of  this  definition  is,  that  a  law 
prescribed  by  the  supreme  power  in  a  State  is  still 
a  law,  even  though  it  does  not  correspond  with  the 
latter  part  of  this  definition,  and  command  what  is 
right  and  prohibit  what  is  wrong.  The  essence  of 
a  positive  law  is  compulsion  by  the  public  authority ; 
and  provided  the  force  of  a  State  be  employed  to 
compel  obedience  to  any  rule  of  civil  conduct,  such 
rule  is  a  law.  A  bad  law  is  that  which  imposes  an 
obligation  without  doing  any  service..  There  have 
been  evil  laws  in  all  ages,  yet  they  have  not  the  less 
been  laws. 

Internal  Positive  Law  is,  therefore,  a  rule  of  civil 
conduct  prescribed  by  the  supreme  power  in  a  State. 

It  is  defined  as  a  rule,  in  order  to  distinguish  it 
from  anything  in  the  nature  of  a  sudden  command, 


80  DEFINITIONS    IX   JURISPRUDENCE. 

a  request  from  an  inferior,  an  advice  from  a  friend, 
or  a  compact  between  equals. 

It  is  termed  a  rule  of  civil  conduct,  that  it  may 
be  distinguished  from  the  rules  of  moral  conduct, 
with  which,  as  such,  the  public  law  does  not  inter- 
fere. The  criminal  branch  of  Positive  Law  docs 
not  punish  vices,  only  crimes.  The  civil  branch  of 
Positive  Law  is  concerned  with  the  maintenance  and 
enforcement  of  private  rights,  where  the  violation 
of  them  has  not  affected  directly  the  public  security. 
Individual  wickedness  is  not  punished  directly  by 
the  law,  except  where  it  interferes  with  the  happi- 
ness of  others  in  a  manner  of  which  the  laws  can  take 
cognizance.  The  prodigal  may  squander  his  fortune 
in  dissipation,  the  fool  may  waste  it  by  reckless 
mismanagement,  the  miser  may  bury  it  from  his 
friends  and  the  world,  but  the  law  is  unable  to  en- 
force prudence  in  dealing  with  one's  own,  or  benev- 
olence toward  others.  Such  things  must  be  left  to 
the  progress  of  knowledge  and  education,  for  jus- 
tice alone,  of  all  the  virtues,  can  be  enforced  by  the 
public  authority. 

Again,  the  rule  of  law  is  prescribed — that  is, 
promulgated  by  the  official  power  of  the  State,  and, 
in  the  last  resort,  enforced.  Laws,  to  be  obeyed, 
must  be  known.  Yet  ignorance  of  the  law  must 
•  never  be  permitted  to  be  urged  as  an  excuse  for  any 
accountable  citizen.  Ignorantia  juris  neminem  ex- 
cusat.  No  man  ought  to  be  permitted  to  profit  by 


DEFINITIONS    IX   JURISPRUDENCE.  81 

his  ignorance  of  the  law,  so  as  to  place  himself  in 
a  more  advantageous  position  than  another,  who  did 
not  neglect  to  make  himself  acquainted  with  those 
rules  to  which  every  member  of  the  society  ought 
to  conform. 

In  the  Institutes  of  Justinian  the  subjects  of  law 
are  divided  into  persons,  things,  and  actions.  This 
arrangement  has  been  followed,  in  modern  times,  in 
the  Code  Frederic,  the  Code  Napoleon,  and  by  Sir 
William  Blackstone,  in  his  Commentaries  upon  the 
Laws  of  England.  It  is  a  most  unscientific  division, 
and  has  checked  the  progress  of  the'  Science  of 
Jurisprudence  in  Germany,  France,  and  England. 

Leibnitz  first  pointed  out  that  the  Roman  arrange- 
ment confounds  fact  with  law,  and  assumes  as  the 
objects  of  law  persons  and  things,  which  are  no 
more  the  objects  of  human  law  than  they  are  the 
objects  of  the  greater  number  of  the  arts  and 
sciences.  Such  a  division  is  founded,  not  upon 
matters  of  law,  or  differences  in  the  component  parts 
of  law,  but  upon  matters  of  fact,  or  differences  in 
substances  mental  and  material,  tending  to  indefinite 
repetitions.  The  Roman  division  of  things  into 
corporeal  and  incorporeal  is  equally  wrong.  The 
term  "incorporeal  things  "  was  a  mere  fiction  to  hide 
the  confusion  of  ideas.  All  these  incorporeal  things 
are  only  rights  to  the  services  of  men. 

The  compilers  of  the  Roman  Code  set  out  with  a 
wrong  division  into  two  parts  which  are  not  exclu- 

JURISPRUDEXCE — 6. 


82  DEFINITIONS    IN   JURISPRUDENCE. 

sive  with  regard  to  each  other — rights  of  persons, 
rights  of  things.  They  were  led  to  this  division  by 
a  species  of  grammatical  symmetry.  But  there  is  no 
correspondence  between  the  two  terms,  except  as  to 
form.  There  is  none  as  to  sense.  The  term  "  rights 
of  persons  "  is  clear.  It  means  rights  conferred  by 
the  law  on  persons,  rights  which  persons  may  en- 
joy. But  if  this  explanation  be  transferred  to  the 
term  "  rights  of  things,"  it  leads  to  an  absurdity. 
Things  can  have  no  rights  belonging  to  them.  The 
law  confers  no  rights  on  things.  The  law  does  not 
favor  things.  Instead  of  "  rights  of  things  "  the  ex- 
pression ought  to  be  "  rights  of  persons  over  things." 
The  change  appears  slight.  But  it  overthrows  the 
nomenclature — the  division  of  rights,  the  pretended 
arrangement  of  the  Roman  lawyers  adopted  by 
Blackstone,  and  according  to  which  he  has  classified 
the  objects  of  law. 


THE    SCIENTIFIC   DEFINITIONS   IN   JURISPRUDENCE. 

Such  have  been  the  views  of  some  most  eminent 
jurists  in  their  department  of  knowledge.  I  pro- 
pose a  more  convenient  division  and  nomenclature  of 
Jurisprudence  and  Positive  Law.  In  the  present 
state  of  the  science,  the  following  classification  of 
its  departments  appears  correct: 

Jurisprudence  is  the  Science  of  Positive  Laws, 
the  Art  of  Legislation,  and  the  Practice  of  Law. 


DEFINITIONS   IN   JURISPRUDENCE.  83 

A  Positive  Law  is  a  rule  of  civil  conduct  pre- 
scribed and  enforced  by  a  State. 

In  the  Positive  Law  of  every  nation  there  are  two 
elements — the  philosophical  and  the  historical.  The 
first  element  to  be  acknowledged  is  the  philosophi- 
cal. The  absolute  ideas  of  justice  and  truth  consti- 
tute its  essence.  But  these  ideas  assume  different 
forms  in  different  States.  Prejudices,  manners,  and 
passions  change  and  deform  them.  And,  in  law, 
history  becomes  associated  with  philosophy.  From 
this  union  the  Positive  Law  of  every  State  arises. 
And  Positive  Law  becomes  an  association  of  univer- 
sal principles  and  of  national  maxims,  of  rational 
axioms  and  of  political  adages.  Legislation  ought 
to  be  a  compromise  between  history  and  philosophy. 

The  end  of  Jurisprudence  is  utility,  or  the  happi 
ness  of  mankind.  Nor  is  this  principle  peculiar  to 
Jurisprudence.  But  it  has  been  the  professed  and 
real  end  of  all  the  sciences  and  arts.  The  greatest 
happiness  of  the  greatest  number  is  the  true  object 
of  legislation. 

All  the  sciences  and  arts  have  for  their  end  and 
aim  utility,  civilization,  and  the  happiness  of  man- 
kind. 

Civilization  is  the  highest  development  of  the 
physical  and  intellectual  faculties  of  mankind. 

Jurisprudence,  like  every  other  mental  science  in 
the  discussion  of  subjects  within  the  domain  of  the 


84  DEFINITIONS   IN   JUKISPRUDENCE. 

will,  considers  not  only  what  the  law  is,  but  what  it 
ou2;ht  to  be. 

O 

The  virtue  of  justice  is  the  disposition  to  give 
every  man  his  right. 

Justice  alone,  of  all  the  virtues,  can  be  enforced 
by  the  public  authority. 

Legal  relations  are  those  which  arise  from  the 
natural  constitution  of  mankind,  and  which  give  in- 
dividuals a  right  to  the  use  of  force  as  necessary  to 
society. 

The  subjects  of  Jurisprudence  are  rights  and 
their  correlative  duties. 

Rights  are  defined  by  Jurisprudence. 

Legal  duties  are  enforced  by  the  Positive  Law. 

The  three  natural  rights  of  man  are  life,  liberty, 
and  property. 

Eights  arise  between  persons  concerning  either 
persons  or  things. 

Actions,  or  forms  of  legal  procedure,  are  the  means 
by  which  the  performance  of  rights  is  insured,  or 
by  which  the  violation  of  rights  is  redressed. 

An  action  is  the  legal  demand  of  a  right. 

o  o 

Actions  include  both  a  civil  action,  or  the  legal  de- 
mand of  a  right  by  an  individual — in  which  the  end 
sought  is  cither  performance  of  a  contract,  or  com- 
pensation for  breach  of  contract,  or  compensation 
for  injury — and  a  State  prosecution,  in  which  the  end 
is  punishment. 

If  the  different  rights  and  duties  incident  to  man 


DEFINITIONS   IN  JURISPRUDENCE.  85 

in  society  be  analyzed,  they  naturally  divide  them- 
selves into  four  classes : 

Those  which  arise  between  individuals,  in  such  a 
manner  that  the  community  is  not  immediately 
concerned  with  them. 

Those  which  arise  between  individuals  in  such  a 
manner  that  the  community  is  directly  concerned, 
and  directly  suffers  by  the  violation  of  the  right. 

Those  which  arise  between  individuals  and  their 
government. 

Those  which  arise  between  different  States,  or 
the  subjects  of  different  States. 

Rights  and  duties  arise  between  individuals  in 
such  a  manner  that  the  community  is  not  immediate- 
ly concerned  with  them.  For  example,  in  a  civil- 
ized country,  if  a  merchant  do  not  deliver  corn  to 
a  purchaser  according  to  the  contract  of  sale,  the 
violation  of  the  right  of  property  does  not  imme- 
diately cause  any  injury  to  the  rest  of  the  com- 
munity. 

Eights  and  duties  arise  between  individuals  in 
such  a  manner  that  the  community  is  immediately 
concerned,  and  immediately  suffers  by  the  infringe- 
ment. If  a  burglar  break  into  a  house  at  night,  or 
if  a  highway  robber  assault  and  murder  a  traveler, 
the  rest  of  the  community  are  directly  injured, 
independently  of  the  parties  immediately  wronged. 
Persons  in  the  neighborhood  of  the  burglary  are 
put  to  the  expense  of  protecting  their  houses  by  ad- 


86  DEFINITIONS    IN   JURISPRUDENCE. 

ditional  safeguards.  Perhaps  they  are  obliged  to 
pay  additional  taxes  for  police.  Terror  is  diffused. 
A  sense  of  wrong  is  therefore  sustained  by  the  com- 
munity, and  vents  itself  in  the  punishment  of  the 
offender  with  an  intensity  proportioned  to  the  degree 
of  injury  caused  by  him,  and  the  degree  of  suffer- 
ing felt  by  the  people. 

Revenge  is  the  origin  of  punishment.  In  the 
early  stages  of  society,  punishment  is  severe  accord- 
ing to  the  hatred  against  the  offender,  and  the  indig- 
nation which  his  neighbors  feel  toward  him.  The 
accumulated  rage  of  a  community  against  an  indi- 
vidual murderer  demands  his  death.  Finally,  in 
the  more  advanced  stage  of  society,  the  reforma- 
tion of  the  criminal  is  attempted,  and  punishment 
is  used  only  as  an  example  and  a  means  for  the  pre- 
vention of  crime,  that  the  punishment  may  reach  a 
few,  the  fear,  all:  ut  poena  ad  paucos,  metus  ad 
omnes  perveniat. 

The  division  of  Positive  Law  which  enforces 
the  performance  of  contracts  and  gives  individuals 
compensation  for  a  violation  of  their  rights,  is 
termed  the  Civil  Law.  The  division  of  Positive 
Law  which  punishes  offenses  is  termed  Criminal 
Law.  If  performance  can  be  enforced,  or  if  dam- 
ages completely  satisfy  the  loss,  and  if  the  public 
security  is  not  weakened  by  the  injury,  the  matter 
may  safely  be  left  to  the  Civil  Law.  But  whenever 
the  public  security  is  endangered,  compensation  is 


DEFINITIONS    IN   JURISPRUDENCE.  87 

insufficient  to  vindicate  justice,  and  punishment 
must  be  added. 

A  crime  is  that  violation  of  a  right  for  which  the 
State  provides  punishment. 

The  chief  end  of  the  Civil  Law  is  the  enforcement 
of  contracts  or  compensation,  the  chief  end  of  the 
Criminal  Law  is  punishment ;  but  in  many  cases 
both  have  a  concurrent  jurisdiction. 

If  we  desire  to  ascertain  whether  a  violation  of 
the  natural  rights  of  man — life,  liberty,  and  prop- 
erty— come  within  the  province  of  the  Civil  or  of 
the  Criminal  Law,  we  have  only  to  ascertain 
whether  such  violation  concern  the  individual  im- 
mediately and  the  community  remotely,  or  whether 
the  interest  of  the  community  be  not  thereby  di- 
rectly affected. 

Rights  and  duties  arise  between  individuals  and 
their  governments. 

The  procedure  to  redress  the  violation  of  a  right 
is  in  all  the  rude  stages  of  society  vague,  violent, 
and  uncertain.  The  savage,  who  has  been  wronged, 
waylays  and  assassinates  the  enemy,  or  else,  in  the 
struggle,  falls — the  victim  of  superior  strength. 
In  time,  the  authority  of  the  law  assumes  the  place 
of  uncertain  strife  ;  and  the  process  by  which  man- 
kind submit  their  disputes  to  the  cognizance  of  le- 
gal tribunals  is  perpetually  developed  further. 

At  first,  only  the  rights  arising  between  subjects 
are  determined  and  protected  by  the  law,  whilst  the 


DEFINITIONS   IN   JURISPRUDENCE. 

sovereign  remains  above  the  law.  Under  barbaric 
despotism,  the  sovereign  acknowledges  no  legal  rule 
binding  upon  him  in  his  conduct  toward  his  sub- 
jects. 

But  in  time  the  relations  between  the  government 
and  the  people  become  subjected  to  certain  positive 
laws.  And  the  body  of  law  determining  the  rela- 
tions between  individuals  and  their  governments  is 
generally  termed  Constitutional  Law,  or  Political 
Law — the  latter  term  is  preferable. 

The  things  of  the  world  must  be  appropriated 
whenever  that  appropriation  is  necessary,  for  the 
purpose  of  rendering  them  as  beneficial  and  valua- 
ble as  their  nature  admits  of  their  being  made. 

The  business  of  government  is  to  promote  the 
happiness  of  mankind,  by  means  of  rewards  and 
punishments.  The  rewards,  however,  in  most  cases, 
are  given  indirectly  to  the  energetic  and  able  men 
who  carry  on  the  political  and  legal  business  of  the 
society. 

Government  is  a  necessity.  If  all  men  were  cul- 
tivated, virtuous,  and  talented,  they  would  discharge 
toward  others  all  the  duties  of  life  better  than  any 
government  could  enforce  them.  A  community  of 
such  persons  would  be  a  law  unto  themselves,  need- 
ing no  coercion ;  and  each  individual  would  be 
urged  by  the  spontaneous  impulses  of  his  own  na- 
ture to  do  right.  Rivers,  in  the  comedy  of  "  False 
Delicacy,"  well  says  :  "  Laws  were  never  made  for 


DEFINITIONS    IN   JURISPRUDENCE.  89 

men  of  honor — they  want  no  law  but  the  rectitude 
of  their  own  sentiments,  and  laws  are  of  no  use 
but  to  bind  the  villains  of  society." 

However,  laws  are  of  use  to  bind  others  besides 
villains  ;  and  the  object  of  every  good  government 
is,  by  means  of  laws,  to  strive  to  bring  all  its  sub- 
jects up  to  that  standard  of  duty  which  the  wisest 
and  best  of  themselves  attain. 

If  this,  then,  be  the  necessity  for  government,  we 
have  to  consider  what  right  a  government  has  to 
coerce  and  punish  its  subjects  upon  occasion. 

It  is  necessary  to  define  the  three  natural  rights 
of  men — life,  liberty,  and  property. 

Natural  liberty  is  the  individual's  right  of  not 
being  obliged  by  any  judgment  or  will  with  which 
his  own  judgment  and  will  do  not  coincide.  But, 
scientifically  defined  in  Jurisprudence,  liberty  is 
freedom  of  action,  controlled  only  by  laws  tending 
to  promote  the  greatest  happiness  of  the  greatest 
number. 

Slavery  is  obligation  of  service  unlimited  in  ex- 
tent or  time. 

Property  is  the  right  of  using. 

The  right  of  property  is  founded  upon  its  subser- 
viency to  the  subsistence  and  well-being  of  man- 
kind. The  institution  of  property  is  necessary  for 
social  order.  The  exclusive  appropriation  of  things 
is  essential  for  the  full  enjoyment  of  them.  The 
sense  of  property  is  bestowed  upon  mankind  for  the 


90  DEFINITIONS    IX   JURISPRUDENCE. 

purpose  of  rousing  them  to  action.  It  is  the  prin- 
cipal foundation  of  social  improvement.  It  leads  to 
the  cultivation  of  the  earth,  the  institution  of  gov- 
ernment, the  establishment  of  justice. 

In  the  right  of  property,  Bentham  includes  four 
things : 

1.  The  right  of  occupation. 

2.  The  right  of  excluding  others. 

3.  The  right  of  disposition,  or  the  right  of  trans- 
fer to  others. 

4.  The  right  of  transmission,  in  virtue  of  which 
the  integral  right  is  transmitted  after  the  death  of 
the  proprietor,  without  any  disposition,  on  his  part, 
to  those  in  whose  possession  he  would   desire  to 
place  it. 

All  modern  civilized  life,  in  Western  Europe,  rests 
upon  the  two  institutions  of  property  and  marriage. 

The  original  titles  to  property  are  occupancy  and 
labor.  Finders  are  keepers  by  common  consent, 
where  there  has  been  no  previous  appropriation. 
What  a  man  has  produced  by  labor  is  his  own. 

The  secondary  titles  to  property  are  consent  and 
inheritance. 

Consent  includes  gift,  sale,  and  exchange. 

The  right  of  inheritance  by  children  of  the  prop- 
erty of  their  parents  depends  on  three  principles : 
the  children  may  have  contributed  by  their  labor 
to  the  formation  of  the  property ;  naturally  they 
expect  to  receive  it,  and  the  State's  gift  to  them  of 


DEFINITIONS    IN   JURISPRUDENCE.  91 

the  property  prevents  disappointment;  lastly,  by 
the  receipt  they  are  prevented  from  becoming  a 
burden  to  the  people.  From  the  inheritance  by 
children  to  the  inheritance  by  relations  the  transi- 
tion was  easy  and  obvious. 

Some  jurists  and  publicists  have  proposed  that  by 
law  the  discretion  of  the  testator  should  be  limited 
to  this :  that  a  certain  fixed  portion  of  the  property 
should  be  distributed  amongst  the  immediate  de- 
scendants, in  a  ratio  suitable  to  the  property  and  po- 
sition of  the  testator.  Where  persons  die  without 
kindred,  and  intestate,  the  State  must  succeed  to 
their  property.  *  In  order  to  avoid  contention  an  ul- 
timate heir — ultimus  hceres — must  be  appointed. 

POLITICAL  JURISPRUDENCE. 

The  great  questions  of  Political  Jurisprudence, 
the  right  of  government  to  the  use  of  force,  the 
province  of  government,  its  duties  as  the  machine 
of  police  and  order,  and  as  the  guide  to  progress, 
demand  a  more  lengthened  investigation. 

The  right  of  society  to  enforce  the  law  by  pun- 
ishment may  be  judged  from  the  following  consid- 
erations : 

When  man  enters  into  society  he  naturally  intrusts 
the  three  rights  of  life,  liberty,  and  property  to 
the  guardianship  of  his  rulers. 

As   every  man  in  his  independent  state  has  by 


92  DEFINITIONS   IX  JURISPRUDENCE. 

nature  the  disposal  of  his  property,  he  can  convey 
the  disposal  thereof  to  society  as  amply  and  abso- 
lutely as  he  was  by  separate  right  entitled  thereto. 

It  is  the  right,  perhaps  the  duty,  of  every  man  to 
defend  his  life,  liberty,  and  property.  It  is  his 
right  to  kill  or  bind  those  who  would  grievously 
wrong  him — this  right  he  can  convey. 

Upon  such  conveyance  it  becomes  the  right  and 
duty  of  the  trustees  of  society  to  put  to  death, 
or  imprison,  or  inflict  any  punishment  suitable  for 
the  prevention  of  crime,  upon  all  who  take  away,  or 
attempt  to  take  away,  the  life,  liberty,  or  property 
of  its  members. 

In  the  infancy  of  civilization,  the  private  disputes 
of  individuals  appear  to  be  decided  by  arbitrators, 
chosen  and  paid  by  the  litigants.  Afterward,  the 
State  is  naturally  resorted  to  as  the  decider  of  dis- 
putes, because  it  is  the  only  impartial  third  party 
possessing  the  requisite  compulsory  force.  The 
whole  people,  in  its  collective  capacity,  is  incapable 
of  exercising  legal  power  correctly.  For  such 
power  ought  to  be  exercised  with  intelligence  and 
impartiality;  and  from  the  tribunal  must  be  ex- 
cluded the  aggressor,  the  injured  party,  and  their 
friends.  Where  the  judicial  body  is  very  numerous, 
and  where  the  responsibility  is  much  divided,  an 
honest  decision  in  important  cases  appears  impossi- 
ble. Historical  examples  of  this  are  the  Athenian 
Courts  in  political  trials,  and  the  decisions  of  the 


DEFINITIONS   IN   JURISPRUDENCE.  93 

English  House  of  Commons  as  to  contested  elec- 
tions when  the  entire  House  voted,  before  the  Gren- 
ville  Act  was  passed,  whick  referred  such  matters 
to  a  select  committee. 

The  three  functions  of  government  are  the  judi- 
cial, legislative,  and  executive. 

In  the  infancy  of  society,  all  political  powers  are 
united.  They  are  all  held  in  the  hand  of  the  sover- 
eign, and  obey  his  arbitrary  will.  But,  according 
to  the  natural  law  of  the  division  of  labor,  a  sepa- 
ration of  these  powers  takes  place.  The  sovereign 
sinks  under  the  weight  of  duties  which  surpass  his 
strength,  and  which  cannot  be  neglected  without  ex- 
posing himself  to  complaints,  disagreeable  even  to 
despotism.  To  dissipate  alarm,. and  prevent  resist- 
ance, the  protection  of  a  special  authority  is  given 
to  what  citizens  hold  most  dear — their  property, 
their  personal  liberty,  their  life.  The  judicial  order 
is  founded.  By  the  establishment  of  tribunals, 
nations  enter  into  the  path  of  regular  institutions. 

In  point  of  time,  the  judicial  power  is  prior  to  the 
legislative,  as  disputes  must  have  arisen  and  have 
been  decided  before  the  State  thought  of  enacting 
a  law  to  regulate  future  controversy.  The  duty  of 
Courts  of  Justice  is  to  apply  the  law.  But,  if  the 
law  be  arbitrary,  the  security  which  tribunals  ac- 
complish is  illusory  and  incomplete.  As  a  conse- 
quence of  tlie  judicial  establishment,  law  must  be 
rendered  certain.  The  right  of  legislation  in  the 


94  DEFINITIONS   IN   JURISPRUDENCE. 

progress  of  society  ceases  to  belong  to  the  sovereign 
power,  and  is  transferred  to  assemblies  which  repre- 
sent the  nation. 

Two  powers,  the  judicial  and  the  legislative,  are 
thus  detached,  and  acquire  a  separate  existence.  To 
the  sovereign  is  reserved  only  the  executive  power. 

The  executive  power  is  divided  into  two  branches 
— the  political,  that  is  to  say,  the  direction  of  the 
general  interests  of  the  nation,  and  the  administra- 
tive, which  consists  in  the  accomplishment  of  the 
public  service. 

Under  constitutional  government,  political  power 
passes  to  the  legislative  assemblies  representing  the- 
people.  The  more  parliamentary  power  increases, 
the  more  it  invades  the  domain  of  politics.  It  con- 
ducts the  policy  of  a  nation  by  laws,  by  financial 
votes.  Arrived  at  its  extreme  development,  it  leaves 
to  the  executive  power  only  the  accomplishment  of 
that  which  it  has  previously  determined. 

Similarly,  in  the  advanced  nations,  the  institution 
of  police  takes  the  power  of  punishment  from  the 
hands  of  the  central  government,  and,  except  in  the 
instances  of  great  crimes,  confides  it  to  local  admin- 
istration. 

Police  is  a  system  of  precaution  for  the  preven- 
tion of  crimes  and  calamities. 

It  is  a  step  in  the  progress  of  society,  and  in  the 
development  of  the  liberty  of  the  individual,  where 
order  is  maintained  under  a  system  of  police,  not 


DEFINITIONS   IN   JURISPRUDENCE.  95 

under  soldiers  devoted  to  the  central  authority  and 
isolated  from  the  citizens. 

The  private  law  of  a  State  is  divided :  as  to  its 
sources,  into  common  or  statute  law;  as  to  its  sub- 
ject-matter, into  rights  and  obligations ;  and  as  to 
the  mode  of  ascertaining  and  enforcing  them,  into 
civil  and  criminal  law.  Procedure  is  the  course 
taken  for  the  execution  of  the  laws.  It  is  the 
method  of  employing  the  instrument  called  law. 

The  laws  of  procedure  are  termed  adjective,  be- 
cause they  assist  the  enforcing  of  the  substantive 
laws.  The  business  of  a  Court  of  Justice  is  to  ex- 
amine and  ascertain,  by  legal  evidence,  the  facts ; 
to  apply  the  law  to  those  facts ;  to  pronounce  judg- 
ment that  such  is  the  law,  and  that  certain  conse- 
quences will  follow  to  individuals,  or  their  property, 
if  the  law  be  not  obeyed. 

The  Political  Law  of  a  nation  is  the  whole  of  the 
legal  relations  existing  between  the  governors  and 
the  governed.  It  determines  the  organization  of 
the  legislative,  executive,  and  judicial  powers. 

Political  Jurisprudence  embraces  a  wide  range  of 
study — the  constitutional  history  of  the  Oriental  na- 
tions, of  Greece,  of  Home,  of  the  Italian  Repub- 
lics, of  France,  of  Germany,  of  Russia,  of  England,  ' 
of  the  United  States — in  a  word,  of  all  the  nations 
that  have  developed  important  political  systems. 
In  the  progress  and  development  of  society,  the 
most  intricate  questions  arise  as  to  the  separation  of 


96  DEFINITIONS   IN  JURISPRUDENCE. 

the  judicial,  legislative,  and  executive  powers  of 
government,  and  with  respect  to  taxation  and  colo- 
nization. 

In  Jurisprudence,  the  term  "  constitution  "  of  a 
State  embraces  the  body  of  the  written  and  un- 
written fundamental  laws  which  regulate  the  rights 
and  privileges  of  magistrates  and  subjects. 

Union  in  society  is  the  destiny  of  man.  This 
does  not  arise  from  the  social  compact  of  which  the 
philosophers  of  the  eighteenth  century  dreamed ;  it 
is  progressively  worked  out  by  the  interior  develop- 
ment of  the  family,  and  the  aggregation  of  other 
families.  The  sense  of  property  is  amongst  the 
earliest  of  our  ideas.  The  child  knows  he  owns  his 
toy  as  well  as  the  peer  knows  he  owns  his  land. 

Civil  government  arises  from  the  desire  of  men 
to  protect  their  property  and  combine  order  and 
freedom  in  their  intercourse  with  one  another.  The 
interposition  of  the  State  is  required  to  redress 
wrongs,  to  determine  disputes,  to  enforce  obligations. 
Without  government,  no  property  could  be  secure, 
no  liberty  certain,  no  civilization  completely  devel- 
oped. At  first,  order  is  the  main  purpose  of  gov- 
ernment, whilst  personal  liberty  and  individual  se- 
curity for  property  are  not  so  much  regarded  by 
those  in  power.  Yet  the  despotisms  of  Asia  are 
preferable  to  anarchy.  Men  prove  this  by  living 
and  trading  under  such  systems.  In  effect,  where 
undeveloped  and  partially  civilized  communities  ex- 


DEFINITIONS   IN   JURISPRUDENCE.  97 

1st,  absolute  monarchy  appears  to  be  the  natural 
form  of  government  —  as  children  learn  to  obey 
others  before  they  learn  to  act  for  themselves. 

The  tendency  of  civilization,  as  developed  in  the 
most  advanced  countries,  is  to  diminish  the  great 
power  which  the  central  government  possesses  in 
the  early  stages  of  society,  whilst  in  modern  times 
the  entire  force  of  a  country  can  be  more  directly 
used  for  external  purposes. 

With  the  progress  of  knowledge  the  despotical 
restraint  becomes  intolerable ;  it  is  no  longer  neces- 
sary, and  it  disappears.  Then  the  liberty  of  the 
individual  subject  is  perfect.  The  importance  of 
the  individual  governor  ceases.  Government  be- 
comes the  mere  machine  of  police  and  order.  In 
the  more  advanced  and  republican  nations,  the  indi- 
vidual becomes  emancipated  from  any  permanent 
bond  of  allegiance.  He  can  transfer  his  person  and 
property  to  whatever  soil  he  pleases,  secure  of  equal 
protection  in  England  or  the  United  States,  pro- 
vided he  obey  the  law.  The  secret  of  organized 
liberty  is  willing  obedience  to  limited  power. 

The  forms  of  government  differ  in  various  coun- 
tries, and  from  causes  hitherto  by  politicians  termed 
accidents.  Yet  even  politics  in  time  may  be  re- 
duced into  a  science ;  and  from  political  history  may 
be  derived  certain  general  principles  which  will 
hold  true  at  all  times  and  under  all  circumstances. 

The  different  forms  of  government,  the  distribu- 
JURISPRUDENCE — 7. 


98  DEFINITIONS    IN    JURISPRUDENCE. 

tion  in  each  State  of  the  power  by  which  the  people 
are  governed,  the  influence  of  such  diversities  upon 
the  prosperity  of  the  several  nations  subject  to  them, 
these  are  facts  from  which  must  be  drawn  the  prin- 
ciples which  constitute  the  Science  of  Political  Ju- 
risprudence. Two  systems  of  government  now 
contend  for  superiority  in  the  civilized  world.  One 
is  the  system  of  freedom  of  popular  institutions 
and  of  representative  government,  as  exemplified  in 
England  and  the  United  States  of  North  America. 
The  other  is  the  system  of  centralized  despotism. 
The  principal  political  disadvantage  of  despotism  is 
that  it  rarely  opens  a  career  to  the  talents  of  the 
people.  And  political  dissatisfaction  much  depresses 
public  industry.  The  main  advantage  of  the  sys- 
tem of  freedom  is  that  it  opens  a  career  to  talents. 
Nor  does  it  appear  now  possible  to  govern  enlight- 
ened populations  by  the  iron  despotic  rule  of  former 
times.  A  despotism,  to  be  cheerfully  obeyed,  must 
be  that  of  greatness  of  intellect  and  knowledge  over 
ignorance  and  incapacity.  Whenever  a  great  man 
has  been  a  successful  despot,  he  has  succeeded  by 
his  power  of  organizing  obedience  to  himself,  and 
by  procuring  the  talent  and  energy  of  his  fellows 
to  work  in  whatever  direction  his  genius  led. 

Alexander,  by  his  greatness  of  soul  and  power 
of  organization,  disciplined  the  soldiers  of  Greece, 
marched  with  ease  to  the  Oxus  and  the  Indus,  and 
overwhelmed  the  barbaric  empires  of  the  day.  He 


DEFINITIONS   IN   JURISPRUDENCE.  99 

was  cheerfully  obeyed.  All  the  clever  men  of 
Greece  were  proud  to  be  captains  under  him ;  but 
when  he  died  they  aspired  to  be  kings,  they  quar- 
reled with  one  another,  and  the  rule  of  Greece  over 
Asia  ceased.  So,  Caasar  and  Napoleon  were  organ- 
izers of  great  political  revolutions.  But  in  order 
now  to  acquire  the  power  of  Caesar,  one  must  of 
necessity  be  in  intellect  and  power  as  far  superior  to 
the  country  gentlemen,  lawyers,  merchants,  editors, 
artists,  tradesmen,  and  students  that  swarm  through 
modern  society,  and  who  develope,  criticise,  and  in- 
fluence the  life  in  which  we  live,  as  these  latter  are 
in  knowledge,  political  capacity,  power  of  critical 
perception,  and  practical  ability,  superior  to  the  sen- 
ators, knights,  and  plebeians  of  the  last  days  of  re- 
publican Rome. 

Napoleon,  whilst  he  held  power,  in  many  respects 
used  it  well.  The  public  works  which  his  adminis- 
trative genius  constructed — the  code  of  laws  which 
owes  its  origin  to  him — these  things  show  what  may 
be  done  by  despotism.  But  the  fall  even  of  Napoleon 
was  hastened  by  men  who  insisted  on  a  share  in  the 
public  government,  and  were  not  content  with  the 
emperor's  promotion  of  solely  military  talents. 
Yet  men  like  Cajsar  and  Napoleon  arise  but  once  in 
a  thousand  years.  So  far  as  we  have  record,  there 
were  not  five  other  such  in  all  history.  And  the 
rules  of  politics,  law,  and  government  must  be 
made  with  a  view  to  the  ordinary  capacities  of  man- 


100       PROVINCE  OF  GOVERNMENT. 

kind,  and  not  with  the  hope  of  a  perpetual  succes- 
sion of  men  like  Napoleon  and  Caesar  in  every 
State. 

The  middle  classes  never  had  a  career  more  open 
to  talent  than  now  in  England.  Competitive  exam- 
ination permits  all  to  enter  the  great  civil  and  mili- 
tary services.  A  great  political  career  is  more  diffi- 
cult of  attainment  for  those  who  are  unaided  by  the 
advantages  of  birth  and  wealth.  But  many  fortu- 
nate circumstances  have  developed  English  liberty. 
Many  centuries  have  moulded  our  political  organiza- 
tion. Many  races  have  formed  our  modern  charac- 
ter. The  reckless  courage  and  plastic  spirit  of  the 
Celt,  the  genius  of  the  Roman  for  law  and  govern- 
ment, the  working  earnestness  of  the  Saxon,  the 
chivalry  of  the  Norman — these  things,  aided  by  that 
zeal  for  knowledge  which  consults  the  wisdom  of  all 
languages  and  ages,  aided  by  those  mechanical  in- 
ventions which  circulate  the  thoughts  of  the  great 
men  of  all  time  through  the  enlightened  populations 
of  these  realms — all  form  the  constituent  elements 
of  the  modern  civilization  of  England ;  and  that 
civilization  will  never  brook  a  despotism,  however 
beneficent. 

PROVINCE    OF   GOVERNMENT— TAXATION. 

Security  is  the  principal  advantage  possessed  by 
modern  society  beyond  every  previous  stage  of  man's 


TAXATION.  101 

social  existence.  Security  does  not  now  exist  only 
for  privileged  races  or  classes,-  but,  in  most  civilized 
countries,  is  for  all.  By  this  protection  of  the  law 
the  public  liberty  exists,  so  far  as  liberty  is  security 
against  the  aggression  of  the  powerful  members  of 
society.  When  we  analyze  the  means  by  which 
this  modern  security  is  obtained  for  the  pop'tliitlunB 
of  civilized  countries,  we  find  it  is  through  the  pub- 
lic machinery  of  justice  and  police,  supported  by  the 
public  taxation.  The  desire  for  property  is  one  of 
the  strongest  springs  of  social  advancement.  But 
unless  property  be  protected,  labor  ceases.  Unless 
there  be  security  for  industry,  man  will  not  labor, 
and  taxation  is  the  price  paid  for  security.  Not 
but  that  there  may  exist  the  heaviest  burdens  of  tax- 
ation with,  at  the  same  time,  very  little  security  for 
the  taxpayers.  The  Eoman  proconsuls  established 
a  system  of  legalized  plunder  over  the  provinces, 
as  the  Turkish  pachas  now  do.  And  all  over  the 
world  exist  examples  of  countries,  once  rich  and 
flourishing,  reduced,  under  the  heaviest  pressure  of 
taxation,  by  evil  laws,  above  all,  by  the  want  of  se- 
curity for  industry,  to  poverty,  desolation,  and  de- 
cay. So,  wherever  upon  the  earth,  by  law,  one  man 
is  enabled  to  reap  the  fruits  of  another's  labor  with- 
out compensating  the  latter,  there  security  does  not 
exist  in  that  degree  which  legislation  should  seek  to 
attain.  Jure  naturce  cequum  est  neminen  alterius 
detrimento  et  injuria  fieri  locupletiorem. 


102        PROVINCE  OF  GOVERNMENT. 

The  amount  of  taxation  may  in  two  ways  be  ex- 
cessive in  proportion  to  the  security  obtained,  either 
'  in  consequence  of  the  public  functionaries  who  dis- 
charge the  public  duties  of  justice  and  order  being 
paid  at  too  high  a  rate,  or  in  consequence  of  a  por- 
tion of  the  inhabitants  of  the  State  being  excluded 
fvoii-  the  benefit  of  the  laws.  Slaves  are  almost 
excluded  from  the  benefit  of  the  law.  In  Ireland, 
&n&l  Mr.!  Gladstone  passed  his  Land  Act,  the  ten- 
ants, not  being  the  legal  proprietors  of  the  land, 
were  compelled  to  cultivate  at  the  risk  of  their  im- 
provements being  confiscated  by  the  proprietor  to 
his  own  use.  In  the  representative  governments  of 
modern  times  there  is  a  constant  economic  tendency 
at  work,  desiring  to  obtain  the  highest  degree  of 
official  aptitude  at  the  least  expense.  So,  in  propor- 
tion to  the  increasing  wealth  and  population  of  the 
most  advanced  countries,  the  public  business  is  con- 
ducted at  less  cost  than  in  former  times.  And  in 
such  countries  as  England  and  the  United  States, 
taxation  may  be  said  to  be  the  price  of  security, 
since  but  a  very  small  portion  of  their  public  gen- 
eral taxation  is  squandered  uselessly. 

Taxation  is  one  of  the  subjects  which  equally 
are  within  the  limits  of  Political  Economy  and 
Jurisprudence.  The  study  of  the  Political  and  Social 
Sciences  is,  above  all  things,  most  fruitful  in  bene- 
ficial results  of  a  practical  nature.  It  teaches  us  to 
employ  the  experience  of  one  age  or  nation  to  di- 


TAXATION.  100 

rect  another,  and  save  it  expense,  inconvenience,  and 
delay ;  it  points  out  the  errors  committed  in  former 
systems  of  civil  and  commercial  polity ;  it  shows 
how  such  errors  are  to  be  corrected  or  avoided,  and 
how  such  systems  may  be  most  effectually  improved 
in  order  to  advance  the  happiness  of  nations. 

Few  subjects  have  exercised  so  great  an  influence 
on  the  destinies  of  States  as  the  systems  of  taxa- 
tion respectively  adopted  by  them.  The  word  tax- 
ation is  found  in  all  the  stirring  pages  of  modern 
history.  Evil  systems  of  taxation  have  caused 
many  of  the  revolutions  of  the  world.  Who  has 
not  heard  of  the  ship-money  in  England,  the  tea- 
duties  at  Boston,  the  taille  and  gdbelle  in  France, 
and  the  consequences  which  they  aided  to  produce  ? 
Until  recent  times,  few  attempts  were  made  to  ascer- 
tain the  true  principles  of  taxation,  and  the  mode 
in  which  different  systems  have  influenced  and  do 
influence  the  public  welfare.  The  reasons  for  this 
are  to  be  found  in  the  military  character  of  the  gov- 
ernments of  the  ancient  world;  the  principles  of 
the  feudal  system ;  the  incorrect  ideas  which,  down 
to  a  late  period,  prevailed,  concerning  the  province 
of  government ;  the  late  diffusion  of  knowledge  and 
education  ;  the  late  rise  into  respect  and  importance 
of  the  mercantile  and  manufacturing  classes  of  the 
community. 

A  tax  is  a  portion  of  the  property  of  individuals 
living  in  society,  given  by  them  to  their  government 


104        PROVINCE  OF  GOVERNMENT. 

in  exchange  for  the  security  which  it  affords  them. 
Taxation  is  the  general  levy  of  particular  taxes 
upon  the  community.  The  word  is  also  used  to  mean 
that  part  of  the  Science  of  Jurisprudence  or  of 
Political  Economy  which  treats  of  the  manner  of 
levying  taxes.  The  word  tax  is  probably  derived 
from  the  same  root  as  the  verb  "  to  take,"  and  literally 
means  something  taken  or  lifted.  In  Latin,  we  meet 
the  words  taxare,  taxatio — in  German,  taecksc — in 
French,  taxer — in  Italian,  tassare.  In  English,  the 
word  task  seems  originally  to  have  been  synonymous 
with  tax.  Thus,  in  the  old  statute,  the  confirmatio 
chartarum,  (25th  Edward  I)  we  meet  the  expres- 
sion, "  aids,  tasks,  and  prises." 

The  taxes  in  all  civilized  countries  are  devoted  to 
almost  the  same  objects.  It  is  necessary  to  main- 
tain an  army  and  navy,  to  guard  our  properties  and 
liberties  against  foreign  ambition  or  domestic  sedi- 
tion. In  all  civilized  societies,  the  proper  admin- 
istration of  justice  and  the  punishment  of  criminals 
are  necessary  for  the  existence  of  the  community  : 
part  of  our  taxation  is  devoted  to  the  business  of 
justice  and  police.  In  all  governments.it  is  neces- 
sary to  pay  the  officers  at  a  high  rate,  in  order  that 
able  men  may  be  obtained  to  fill  such  offices  :  part 
of  our  taxation  is  devoted  to  the  payment  of  those 
who  carry  on  the  transactions  of  government.  In 
all  countries  it  is  necessary  to  support  in  proper 
affluence  and  dignity  the  head  of  the  nation :  and 


TAXATION.  105 

every  country  accordingly  pays  something  to  main- 
tain the  head  of  the  nation,  whether  that  head  be 
the  chief  of  a  barbarous  tribe,  or,  as  in  civilized 
countries,  called  emperor,  king,  or  president.  Part 
of  the  taxation  of  all  the  old  countries  of  the  world 
that  maintain  their  credit,  defrays  the  interest  of 
the  national  debt,  contracted  in  former  years,  when 
the  taxes  raised  were  not  sufficient  to  meet  the  ex- 
penditure. 

It  has  been  made  a  question  with  some  jurists,  al- 
though seldom  in  modern  times,  whether  the  sup- 
.  port  of  paupers  should  be  provided  for  at  the  public 
expense.  Paupers  have  no  absolute  right  to  support 
founded  on  the  institution  of  society.  It  cannot  be 
said  that  those  who  possess  property  are,  on  account 
of  the  possession  of  that  property,  bound  to  feed 
those  who  do  not  possess  it,  and  are  unable  to  main- 
tain themselves.  The  latter  are  not  in  a  worse  con- 
dition than  they  would  have  been  had  society  and 
property  never  existed.  But  in  relation  to  civil 
society,  the  right  of  paupers  to  subsistence  may  be 
said  to  be  founded  on  the  obedience  to  the  law  which 
society  exacts  from  them.  For  breaking  the  law  as 
regards  property  they  would  be  punished,  but  not 
in  modern  times  starved,  or  otherwise  put  to  death. 
If  one  breaking  the  law  should  steal  a  loaf  to  satisfy 
his  hunger,  he  would  be  imprisoned,  but  during 
that  imprisonment  fed.  Would  it  not,  then,  be 
absurd  to  support  the  criminal  and  allow  the  pauper 


106        PROVINCE  OF  GOVERNMENT. 

who  obeyed  the  law  to  starve  ?  The  support  of  the 
poor,  once  that  their  right  to  support,  so  qualified, 
is  acknowledged,  should  not  be  left  to  voluntary 
contributions.  These  are  uncertain,  according  to 
the  fortune  and  ability  of  the  benevolent.  If  they 
be  deficient,  starvation  ensues.  If  they  be  super- 
abundant, they  offer  a  reward  to  laziness.  It  would 
be  unjust  to  leave  the  support  of  the  poor  only  to 
the  benevolent,  as  this  would  be  an  exclusive  tax 
upon  the  best  members  of  society.  Besides,  under 
the  voluntary  system  of  relief,  a  just  distribution  is 
almost  impossible.  The  most  importunate  will  ob- 
tain the  greatest  quantity  of  alms,  whilst  silent 
poverty  will  be  left  unnoticed.  In  times  of  famine 
the  support  of  the  poor  by  private  benevolence 
would  be  impossible.  The  principal  reason,  there- 
fore, for  the  support  of  the  poor  by  a  rate  is,  that 
it  is  unsafe  for  society  to  leave  them  without  bread. 
Hunger  is  a  foe  to  social  security. 

As  regards  the  poor  who  are  too  far  advanced  in 
life  to  receive  education,  no  provision  should  be 
made  for  them  beyond  the  necessaries  of  life,  other- 
wise the  poor-rate  becomes  a  provision  and  a  pre- 
mium for  the  idle,  and  industry  is  taxed  for  the 
support  of  laziness.  But  unquestionably  the  children 
who  are  on  the  rates  should  be  educated  and  taught 
some  trade,  in  order  that  they  may  in  after-life  be 
able  to  support  themselves,  and  that  they  may  not 
be  a  burden  to  the  community.  If  all  were  well 


TAXATION.  «   107 

educated,  and  possessed  of  those  prudent,  indus- 
trious, and  virtuous  habits  which  a  good  education 
engenders,  none  would  be  cast  on  the  rates  except 
the  aged  and  infirm. 

It  has  often  excited  surprise  that,  with  the  ad- 
vance of  nations  in  the  wealth,  liberty,  and  general 
prosperity  which  compose  our  modern  civilization, 
poverty  at  the  same  time  increases,  and  able-bodied 
men  are  unable  to  support  themselves  by  their  labor. 
The  causes  of  poverty  are  to  be  found  in  the  greater 
amount  of  labor  required  as  society  advances  in 
civilization.  Labor  increases  in  intensity  with  the 
progress  of  society.  The  same  amount  of  labor 
which  in  an  imperfectly  organized  and  thinly  inhab- 
ited community  would  be  sufficient  to  maintain  a 
person  in  tolerable  comfort,  will,  in  a  more  advanced 
community,  scarcely  keep  him  from  starvation. 
The  further  that  the  community  has  made  indus- 
trial progress  from  the  original  unproductive  habits 
of  the  savage,  the  more  does  it  tax  the  energies  of 
each  individual  member,  and  the  less  will  any  one 
who  is  indolent,  or  capable  only  of  the  lowest  spe- 
cies of  labor,  be  able  to  keep  pace  with  the  march 
of  society.  A  Hindoo  must  practice  more  produc- 
tive industry  than  a  New  Hollander — a  Chinese 
than  a  Hindoo — a  Russian  than  a  Chinese  ;  a  mer- 
chant in  a  metropolis  must  work  harder  than  a  mer- 
chant in  a  provincial  town,  and,  generally  speaking, 
the  inhabitants  of  London  exercise  more  skill  and 


108       PROVINCE  OF  GOVERNMENT. 

untiring  industry,  and  require  to  exercise  more,  than 
the  inhabitants  of  any  other  place  upon  the  earth. 
With  the  progress  of  society,  a  greater  amount  of 
a  superior  kind  of  labor  is  required  from  us.  A 
great  number  will  continually  be  left  behind  in  the 
race  of  social  progress,  and  will  be  unable  to  pro- 
vide themselves  with  the  necessaries  of  life.  The 
only  means  of  counteracting  this  downward  tend- 
ency is  by  education,  which,  to  speak  economically, 
enables  the  poor  to  employ  skillful  labor,  instead  of 
unskilled.  A  man  able  to  read  and  write  is  a  more 
valuable  member  of  society  than  he  who  is  unable 
to  read  and  write.  Juridical  science  has  discovered 
the  true  causes  of  the  evil,  and  points  out  the  rem- 
edy— the  industrial  education  of  the  people.  The 
education  of  the  poor  is  a  proper  subject  to  be  pro- 
vided by  the  State  out  of  the  public  general  taxes. 
Where  the  population  is  well  instructed,  and  early 
trained  to  moral,  peaceable,  and  virtuous  habits,  less 
expense  is  required  for  the  police  regulations  of  so- 
ciety. The  difficulty  is  to  guard  against  the  dan- 
gers of  educating  the  masses  above  the  position  in 
life  which  they  are  destined  to  occupy.  Still,  under 
certain  limitations,  the  education  of  the  poor  may 
be  considered  as  an  auxiliary  measure  of  security. 

The  duties  of  government,  in  return  for  which 
the  public  taxes  are  paid,  are  the  defense  of  the 
country,  the  administration  of  justice,  and  the  pres- 
ervation of  order,  all  which  may  be  included  under 


TAXATION.  109 

the  term  public  protection  or  security.  Taxes  are 
paid  in  exchange  for  security.  All  the  taxes  paid 
for  the  support  and  maintenance  of  the  executive 
government,  for  the  purposes  of  justice,  police,  the 
army  and  navy,  and  the  poor,  are  all  paid  in  order 
to  obtain  security.  There  are  no  other  purposes  for 
which  taxes  ought  to  be  raised,  except  those  con- 
nected directly  with  public  security.  The  educa- 
tion of  the  poor  is  directly  connected  with  security. 
But  it  is  at  least  doubtful  whether  provision  should 
be  made  from  the  public  taxes  for  the  education  of 
those  who  are  able  to  pay  for  it.  !N"o  person  ought 
to  be  supported  from  the  public  taxes  who  does  not, 
by  his  present  services,  directly  contribute  to  the 
public  security.  Taxes  are  paid  in  exchange  for 
security,  and  ought  in  rare  instances  to  be  applied  in 
any  other  way.  This  principle  appears  very  obvious, 
yet  it  has  been  much  disregarded.  It  follows,  from 
this  principle,  that  all  applications  of  the  public 
money,  such  as  loans  to  capitalists  to  increase  their 
trade,  are  improper  and  mischievous.  Some  States 
have  lent  money  to  agricultural  capitalists  for  the 
purposes  of  drainage,  and  other  similar  improve- 
ments;  other  States  have  lent  money  to  manufac- 
turing capitalists  for  their  business.  But  all  the 
treasure  of  government  arises  only  from  taxes — 
taxes  levied  by  constraint  upon  the  community.  For 
a  government  to  take  from  one  portion  of  its  sub- 
jects in  order  to  benefit  another  is  merely  to  do  a 


110       PROVINCE  OF  GOVERNMENT. 

certain  evil  for  an  uncertain  good.  Even  if  the  taxes 
were  repaid  to  the  State,  still  the  injustice  would  con- 
tinue for  the  time  during  which  they  remained  tinre- 
paid.  But  all  public  loans,  grants,  and  advances 
have  a  natural  tendency  to  be  jobbed,  misemployed, 
wasted,  and  stolen.  The  capital  so  lent  will  always 
be  employed  upon  branches  of  industry  less  pro- 
ductive than  those  toward  which  it  would  have  nat- 
urally directed  itself.  The  very  individuals  who 
borrow  the  government  money  at  a  low  rate  of  in- 
terest would  not  employ  their  own  capital  similarly, 
or  could  not  borrow  money  at  the  ordinary  rate  for 
such  investments.  Government  should  not  tax  its 
subjects  for  these  purposes,  when  individuals  con- 
sulting their  own  interests  will  not  meddle  with 
them. 

All  citizens  are  interested  in  having  public  pro- 
tection for  their  private  property,  therefore  all  are 
bound  to  pay  taxes  to  maintain  those  persons  with- 
out whom  this  public  protection  would  not  exist. 
All  are  interested  in  having  this  public  protection 
in  proportion  to  the  value  of  their  property.  But 
in  levying  taxation,  the  principle  should  be  kept  in 
view  that  all  departments  of  the  public  service, 
which  do  not  come  under  the  head  of  security, 
should  be  made  to  defray  their  own  expenses.  Their 
accounts  should  be  kept  separate,  and  their  cost 
defrayed,  not  from  the  public  general  taxation,  but 
from  the  moneys  raised  in  the  individual  services. 


TAXATION.  Ill 

For  example,  the  post-office  should  defray  its  own 
expenses.  The  rate  of  postage  ought  to  be  lowered 
whenever  the  receipts  from  that  source  exceed  the 
expenditure,  because  a  tax  upon  commercial  inter- 
course is  an  improper  source  of  revenue.  All  other 
expenses  which  do  not  come  under  the  head  of  pub- 
lic security,  should  be  defrayed  by  local  rates. 

Political  Science,  cultivated  in  free  countries,  has 
now  demonstrated  that  all  taxation  should  be  for 
the  public  good,  and  is  justified  by  necessity  alone. 
Taxes  are  wages  paid  by  the  people  to  certain  of 
their  own  number,  in  exchange  for  the  public  serv- 
ices which  are  necessary  to  the  existence  of  pub- 
lic liberty  and  security.  It  is  a  very  common  soph- 
ism to  say  we  are  burdened  with  taxes — the  country 
groans  beneath  the  weight  of  taxes.  In  most  of 
the  old  countries  of  the  world  the  rate  of  taxation 
is  very  high.  We  pay  a  great  sum  for  justice  and 
police,  but  then  we  have  justice  and  police — the  se- 
curity which  they  afford  us,  the  time  which  they 
save  us ;  and  it  is  very  probable  that  production  is 
neither  active  nor  easy  amongst  people  where  each 
takes  the  law  into  his  own  hands. 

For  example :  in  some  countries  the  judges  are 
very  indifferently  paid,  take  bribes,  and  give  their 
decisions  according  to  the  will  of  the  highest  bid- 
der. The  consequence  in  the  second  instance  is, 
that  the  merchants  of  those  countries  give  little 
credit,  from  the  great  difficulty  and  uncertainty  in 


112  PROVINCE   OF   GOVERNMENT. 

recovering  their  debts.  Thus,  trade  and  commerce 
are  paralyzed.  Taxation,  therefore,  is  an  incident 
of  society.  Public  order,  public  liberty,  and  public 
justice  are  as  essential  to  the  complete  development 
of  the  resources  of  a  country,  in  the  production  of 
wealth,  as  each  of  the  great  agents  of  production — 
capital,  labor,  and  the  land.  No  one  would  till  the 
stubborn  earth,  or  sow  it  with  seed,  if  he  were  not 
certain  that  the  fruit  of  the  harvest  would  be  reaped 
by  himself.  The  triumphs  of  mechanical  science, 
used  as  an  agent  of  production  in  modern  times, 
would  never  have  existed  if  the  products  had 
not  been  secured  for  the  benefit  of  the  producer. 
The  gigantic  system  of  credit  now  prevalent  in  com- 
mercial countries  could  not  have  arisen,  if  the  peo- 
ple had  not  been  willing,  in  the  first  instance,  to  re- 
munerate and  place  in  an  honorable  position  those 
members  of  their  own  body  who  discharge  the  pub- 
lic functions  of  justice  and  order.  The  natural  ad- 
vantages of  soil  and  climate  avail  but  little,  unless 
use  be  made  of  them  by  the  energy,  honesty,  and 
ability  which  are  required  to  lay  the  foundations  of 
civilization.  There  are  countries  where  the  bread- 
tree  grows  spontaneously;  where  fruits  and  spices 
hang  upon  every  shrub  ;  where  the  larger  kinds  of 
corn  grow  with  but  little  labor.  Yet  such  favored 
regions,  illumined  by  a  cloudless  sun,  with  valleys 
cooled  by  mountain  streams — every  field  a  garden 
of  variegated  flowers,  colored  with  hues  unknown  to 


TAXATION.  113 

colder  climates — are  inhabited  by  listless  savages, 
who  sometimes  perish  from  starvation.  These  mag- 
nificent regions  are  uncultivated  and  savage,  be- 
cause they  never  have  been  inhabited  by  an  ener- 
getic and  laborious  race,  capable  of  originating  free 
institutions.  Whilst  knowledge,  capital,  and  indus- 
trious labor,  fostered  by  security,  raised  Venice 
and  Holland  from  the  seas,  and  made  them  both 
the  seats  of  flourishing  communities,  powerful  in  gov- 
ernment and  war,  the  barren  wolds  of  Lancashire 
have  been  changed  into  mines  of  prosperous  wealth 
worth  all  Golconda  or  Peru — to  show  us  that  of  all 
the  gifts  with  which  the  earth  has  been  blessed,  and 
those  who  inhabit  it,  the  greatest  is  that  untiring  en- 
ergy with  which  man  works  where  there  is  complete 
security  for  the  fruits  of  industry. 

Adam  Smith  has  laid  down  the  four  following 
maxims  on  taxation,  and  since  they  were  published 
they  have  received  the  concurrence  of  every  sound 
writer  on  Jurisprudence. 

The  subjects  of  every  State  ought  to  contribute 
to  the  support  of  the  government  as  nearly  as  possi- 
ble in  proportion  to  their  respective  abilities — that 
is,  in  proportion  to  the  revenue  which  they  respect- 
ively enjoy  under  the  protection  of  the  State.  The 
expense  of  government  to  the  individuals  of  a  great 
nation  is  like  the  expense  of  management  to  the 
joint  tenants  of  a  great  estate,  who  are  all  obliged 
to  contribute  in  proportion  to  their  respective  inter- 

JURISPBUDEXCE — 8. 


114        PROVINCE  OF  GOVERNMENT. 

ests  in  the  estate.  In  the  observation  or  neglect  of 
this  maxim  consists  what  is  called  the  equality  or 
inequality  of  taxation.  Every  tax,  it  must  be  ob- 
served, once  for  all,  which  falls  finally  upon  one 
only  of  the  three  sorts  of  revenues — namely,  rent, 
profit,  and  wages,  from  one  or  other  of  which  the 
private  revenue  of  all  individuals  must  be  derived — 
is  necessarily  unequal,  in  so  far  as  it  does  not  affect 
the  other  two. 

The  tax  which  each  individual  is  bound  to  pay 
ought  to  be  certain  and  not  arbitrary.  The  time  of 
payment,  the  manner  of  payment,  the  quantity  to 
be  paid,  ought  all  to  be  clear  and  plain  to  the  con- 
tributor, and  to  every  other  person.  Where  it  is 
otherwise,  every  person  subject  to  the  tax  is  put 
more  or  less  in  the  power  of  the  tax-gatherer,  who 
can  either  aggravate  the  tax  upon  any  obnoxious 
contributor,  or  extort,  by  the  terror  of  such  aggra- 
vation, some  present  or  perquisite  for  himself.  The 
uncertainty  of  taxation  encourages  the  insolence  of 
tax-gatherers,  the  corruption  of  an  order  of  men  who 
arc  naturally  unpopular — even  where  they  are 
neither  insolent  nor  corrupt.  The  certainty  of  what 
each  individual  ought  to  pay  is,  in  taxation,  a  mat- 
ter of  so  great  importance  that  a  very  considerable 
degree  of  inequality,  it  appears  from  the  experience 
of  all  nations,  is  not  nearly  so  great  an  evil  as  a  very 
small  degree  of  uncertainty. 

Every  tax  ought  to  be  levied  at  the  time  or  in  the 


TAXATION.  115 

manner  in  which  it  is  most  likely  to  be  convenient 
for  the  contributor  to  pay  it. 

Every  tax  ought  to  be  contrived  so  as  both  to 
take  out  and  keep  out  of  the  pockets  of  the  people 
as  little  as  possible  over  and  above  what  it  brings 
into  the  public  treasury  of  the  State.  A  tax  may 
either  take  out  or  keep  out  of  the  pockets  of  the 
people  a  great  deal  more  than  it  brings  into  the 
public  treasury,  in  the  following  way:  1st.  The 
levying  of  it  may  require  a  great  number  of  officers, 
whose  salaries  may  eat  up  the  greater  part  of  the 
produce  of  the  tax,  and  whose  perquisites  may  im- 
pose another  additional  burden  on  the  people.  2d.  It 
may  obstruct  the  industry  of  the  people,  and  dis- 
courage them  from  applying  to  certain  branches  of 
business  which  might  give  maintenance  and  employ- 
ment to  great  multitudes.  While  it  obliges  the 
people  to  pay,  it  may  thus  diminish  or  destroy  some 
of  the  funds  which  might  enable  them  more  easily 
to  do  so.  3d.  By  the  forfeitures  and  other  penalties 
which  those  unfortunate  individuals  incur  who  at- 
tempt unsuccessfully  to  evade  the  tax,  it  may  fre- 
quently ruin  them,  and  thereby  put  an  end  to  the 
benefit  which  the  community  might  have  received 
from  the  employment  of  their  capital.  An  injudi- 
cious tax  offers  a  great  temptation  to  smuggling  ; 
but  the  penalties  of  smuggling  must  rise  in  propor- 
tion to  the  temptation.  The  law,  contrary  to  all  the 
ordinary  principles  of  justice,  first  creates  the  temp- 


116  TAXES    OX   JUSTICE. 

tation,  and  then  punishes  those  who  yield  to  it ;  and 
it  commonly  enhances  the  punishment,  too,  in  pro- 
portion to  the  very  circumstances  which  ought  cer- 
tainly to  alleviate  it — the  temptation  to  commit  the 
crime.  4th.  By  subjecting  the  people  to  the  fre- 
quent visits  and  the  odious  examination  of  the  tax- 
gatherers,  it  may  expose  them  to  much  unnecessary 
trouble,  vexation,  and  oppression ;  and  though  vex- 
ation is  not,  strictly  speaking,  expense,  it  is  certainly 
equivalent  to  the  expense  at  which  every  man 
would  be  willing  to  redeem  himself  from  it. 

Thus,  the  fundamental  maxims  on  the  subject  of 
taxation  are :  First,  that  the  subjects  of  a  State 
should  pay  taxes  according  to  their  ability ;  secondly, 
that  the  tax  should  be  certain,  not  arbitrary ;  thirdly, 
the  tax  ought  to  be  levied  at  a  convenient  time  and 
in  a  convenient  manner ;  fourthly,  the  tax  ought  to 
be  collected  at  the  cheapest  rate. 

These  true  principles  of  taxation  are  gradually 
being  adopted  in  Western  Europe.  And  the  states- 
men of  North  America  have  been  even  more  suc- 
cessful in  their  adaptation. 

TAXES  ON  JUSTICE. 

Taxes  on  justice  are  unjust  and  indefensible  upon 
the  sound  principles  of  juridical  science. 

The  duty  of  protecting  property  by  means  of  just 
laws,  promptly,  uniformly,  and  impartially  admin- 


TAXES   OX  JUSTICE..  117 

istered,  is  one  of  the  strongest  and  most  interesting 
of  obligations  on  the  part  of  government.  Mr. 
Hume  looked  upon  the  whole  apparatus  of  govern- 
ment as  having  ultimately  no  other  object  but  the 
distribution  of  justice.  Lord  Brougham  has  graph- 
ically expressed  the  same  idea,  when  he  said  that 
the  end  of  the  whole  paraphernalia  of  king,  lords, 
commons,  army,  and  navy,  was  to  place  twelve  hon- 
est men  in  a  jury-box.  The  passion  to  acquire 
property  is  incessantly  busy  and  active.  Every 
man  is  striving  to  better  his  condition.  Constant 
struggles  and  jealous  collisions  take  place  between 
men  of  property  and  no  property — the  one  to  ac- 
quire, the  other  to  preserve ;  and  between  debtor 
and  creditor — the  one  to  exact,  the  other  to  postpone 
payment.  We  pay  taxes  in  return  for  the  security 
afforded  by  government  to  our  properties  and  liber- 
ties. We  ought  not  to  discourage  by  a  tax  the  very 
means  by  which  an  injured  subject  seeks  redress 
from  the  laws  of  the  realm. 

It  was  perhaps  natural,  in  the  early  stages  of  so- 
ciety, that  the  sovereign  of  a  petty  State  should 
receive  fees  from  his  subjects  upon  the  arbitration 
of  their  private  disputes.  His  revenue  derived 
from  his  private  lands,  or  from  tributary  exactions, 
was  not  sufficient  to  pay  the  expenses  of  juridica- 
ture,  in  addition  to  the  other  expenses  of  govern- 
ment. Even  if  it  were  sufficient,  the  imposition  of 
judicial  fees  upon  suitors  was  an  easy  method  of 


118  TAXES   ON   JUSTICE. 

raising  additional  taxes.  Thus,  the  plan  of  impos- 
ing taxes  upon  suitors  who  wished  the  decision  of 
the  authorized  Courts  of  Law  upon  their  private  dis- 
putes, was  originally  adopted  by  every  State.  The 
judges,  in  every  country,  were  originally  paid  by 
fees  exclusively.  The  judges  accordingly  derived 
an  additional  source  of  income  from  the  business 
in  their  Courts,  and  were  thus  interested  in  the 
abundance  and  protraction  of  litigation.  The  judges 
are  now  paid  in  most  countries  by  fixed  salaries. 
However,  some  of  the  expenses  of  justice  are  still 
defrayed  by  suitors.  This  should  not  continue. 
Courts  of  Justice  should  be  provided  at  the  general 
expense  of  the  country,  in  the  same  way  as  the 
army  and  navy  are  paid  for,  out  of  the  public  gen- 
eral taxation.  And  suitors  ought  not  to  be  com- 
pelled to  undergo  any  expense,  except  that  which  is 
naturally  incurred  by  providing  legal  assistance  in 
order  to  conduct  the  particular  case.  In  effect,  a 
tax  upon  the  administration  of  justice  is  a  direct 
reward  offered  for  injustice.  It  is  inconsistent  that 
the  same  legislators  should  at  the  same  time  give 
rewards  for  informers  and  impose  taxes  on  justice. 
By  giving  the  bounty,  they  acknowledge  that  it  is 
right  to  encourage  persons  to  come  forward,  and  to 
further  the  ends  of  justice ;  by  imposing  the  tax 
they  throw  difficulties  in  the  way  of  the  legal  re- 
dress for  wrongs.  It  was  natural  that,  in  early 
times,  the  expenses  of  justice  should  be  defrayed 


TAXES   ON   JUSTICE.  119 

by  suitors.  To  those  rude  reasoners  it  appeared 
certain  that  he  who  obtained  a  judgment  in  his 
favor  reaped  the  principal  advantage  to  be  obtained, 
and,  therefore,  that  it  was  but  right  he  should 
bear  the  expense  incurred.  But  the  parties  who  are 
compelled  to  have  recourse  to  legal  process,  in  order 
to  obtain  redress  for  their  wrongs,  are  precisely 
those  who  have  obtained  least  benefit  from  the  gen- 
eral law  of  the  realm.  They,  at  the  expense  of 
time,  care,  and  money,  have  purchased  that  protec- 
tion which  others  enjoy,  only  paying  the  ordinary 
amount  of  taxation. 

Another  objection  to  taxes  on  law  proceedings  is, 
that  they  fall  upon  a  man  at  the  period  of  his  dis- 
tress. At  the  very  moment  when  something  of  a 
man's  property  is  taken  from  him,  and  he  applies 
for  redress  to  the  public  law  of  the  State  whereof 
he  is  a  subject,  this  is  the  time  chosen  to  call  on 
him  for  an  additional  contribution  to  the  support  of 
the  State.  To  the  poor,  this  often  effects  a  denial 
of  justice.  But  public  justice  is  a  part  of  the  gen- 
eral system  of  public  protection,  which  governments 
in  civilized  societies  afford  in  return  for  the  taxes 
which  they  receive  from  the  people.  By  the  system 
of  Courts  of  Law,  that  is,  the  public  arbitration  of 
private  disputes,  and  supported  in  the  last  resort  by 
the  military  power,  the  rights  of  all  are  protected. 
By  a  contested  case  at  great  cost,  a  doubtful  right  is 
decided.  And  the  decision  assists  in  protecting  the 


120  TAXES    OX   JUSTICE. 

rights  and  liberties  of  all.  Therefore,  the  parties 
who  suffer  some  injury  to  their  rights  ought  not  to 
defray  the  expense  of  the  public  justice  by  which 
they  are  redressed.  They  are  the  persons  least  bene- 
fited by  the  law  and  its  administration.  The  pro- 
tection which  the  law  affords  them  is  not  complete, 
since  they  have  been  obliged  to  resort  to  a  Court 
of  Justice  to  execute  their  rights  and  maintain  their 
rights  against  infringement,  whilst  the  remainder  of 
the  public  have  enjoyed  the  immunity  from  injury 
conferred  by  the  law  and  its  tribunals,  without  the 
inconveniences  of  an  appeal  to  them.  A  precisely 
parallel  case  is  aggression  by  a  foreign  State  upon 
part  of  our  community,  and  a  war  in  consequence 
for  their  redress,  and  to  protect  them  from  further 
molestation.  The  parties  aggrieved  are  not  com- 
pelled to  pay  the  expense  of  the  war.  In  fact,  if  it 
were  possible  to  have  private  rights  settled  entirely 
at  the  public  expense,  it  would  be  desirable.  But 
this  is  impossible ;  for  those  whose  business  it  is  to 
manage  legal  proceedings  could  never  be  expected 
to  have  the  same  zeal  in  individual  cases  if  they 
were  paid  public  officers,  and  assigned  accordingly. 
The  best  system  of  providing  for  the  expense  of 
public  justice  appears  to  be,  that  the  public  ma- 
chinery of  the  law  should  be  paid  for  entirely  out  of 
the  public  treasury,  whilst  suitors  should  be  put  to 
no  expense,  beyond  what  the  advocacy  of  their  in- 
dividual cases  may  demand. 


DUTIES   OP   GOVERNMENT.  121 

The  subject  of  law  taxes  may  be  concluded  by  a 
quotation  from  Bentham :  "  The  statesman  who  con- 
tributes to  put  justice  out  of  reach — the  financier 
who  comes  into  the  house  with  a  law-tax  in  his  hand 
— is  an  accessory  after  the  fact  to  every  crime  :  every 
villain  may  hail  him  brother  ;  every  neighbor  may 
boast  of  him  as  an  accomplice.  To  apply  this  to  in- 
tentions would  be  calumny  and  extravagance ;  but 
as  far  as  consequences  only  are  concerned,  clear  of 
criminal  consciousness,  it  is  incontrovertible  and 
naked  truth." 

DUTIES    OF  GOVERNMENT— EDUCATION. 

Much  discussion  has  arisen  as  to  the  encourage- 
ment of  art,  science,  and  education,  by  endow- 
ments from  the  public  moneys.  The  primary  ob- 
ject of  government  is  security ;  but  the  question 
arises,  Is  it  advisable  for  a  powerful  and  wealthy 
community  to  make  public  provision  for  other  pur- 
poses ? 

The  education  of  the  poor  by  the  State,  under 
certain  limitations,  is  a  measure  of  security,  and  for 
the  poor  education  should  be  gratuitous.  Places  of 
public  amusement,  museums,  parks,  and  picture  gal- 
leries, open  to  the  publics-even  these  may  be  consid- 
ered as  auxiliary  measures  of  security,  inasmuch  as 
they  refine  the  public  taste,  create  more  wide  and  gen- 
erous judgments,  unfold  more  ennobling  pleasures. 


122  DUTIES   OF   GOVERNMENT. 

The  craving  for  excitement  and  recreation  is  natural 

O 

to  us.  The  wearied  and  depressed  spirits  of  those 
who  live  the  crowded  life  of  laborious  cities  must  in 
some  way  be  refreshed.  When  daily  labor  is  per- 
formed, when  the  claims  of  social  duty  are  fulfilled, 
moderate  and  timely  amusement  claims  its  place  as 
a  want  inherent  in  our  nature.  The  rich  have  a 
thousand  ways  of  gratifying  this  natural  desire  for 
excitement  and  relaxation.  In  England  and  Ireland 
the  poor  have  almost  but  one — intoxication  by  the 
drinking  of  ardent  spirits.  It  is  right  to  strive  to  res- 
cue the  poor  from  this  dominion  of  the  groveling 
and  the  vile  ;  to  give  them  some  idea  of  the  grand 
achievements  of  antiquity,  the  magnificent  efforts 
of  the  human  race,  the  beauty  of  nature  and  art. 
But  institutions  such  as  I  have  alluded  to  can  be 
supported  on  a  large  scale  only  by  public  taxation. 
To  make,  also,  the  education  of  the  people  with  cer- 
tainty a  measure  of  security,  they  ought  to  be  in- 
structed in  the  principles  of  law  and  Political 
Science.  Under  the  title  of  law,  the  children  of 
the  people  should  be  instructed  as  to  the  criminality 
and  penal  nature  of  the  most  prominent  offenses. 
It  has  been  remarked  that  crimes  against  the  person 
occur  more  frequently  in  some  districts  than  others. 
This  is  to  be  attributed  not  merely  to  a  degree  of 
greater  barbarity,  but  also  to  a  greater  ignorance  of 
the  law.  The  danger  now  to  be  apprehended  from 
the  Socialist  sects  through  Europe  arises  from  the 


EDUCATION.  123 

prevalent  ignorance  of  history,  of  the  true  nature 
of  man,  and  of  correct  political  principles. 

The  universities  of  England  have  been  gorgeously 
endowed,  and  the  middle  classes  of  society  princi- 
pally enjoy  their  benefits.  The  magnificent  educa- 
tional charities  in  England  ennoble  the  country  and 
character  of  Englishmen.  We  may  reckon  these 
amongst  the  public  endowments  for  education, 
although  many,  if  not  most  of  them,  are  of  private 
foundation.  They  arose  from  fortunes  acquired  in 
trade  and  bequeathed  by  public  citizens,  with  that 
desire  to  do  good,  that  noble  liberality  and  zeal  for 
knowledge,  which  form  some  of  the  most  promi- 
nent and  best  features  in  the  English  character.  Of 
late  years,  vast  sums  are  annually  voted  by  Parlia- 
ment for  the  purposes  of  national  education. 

But  the  question  arises,  Should  colleges  and  uni- 
versities be  provided  out  of  the  public  general  tax- 
ation, to  educate  those  of  the  middle  and  upper 
classes  who  may  be  able  to  avail  themselves  of 
them?  Adam  Smith  entertained  a  very  strong 
opinion  upon  the  subject.  He  considered  such  en- 
dowments most  injurious  to  the  cause  of  science  and 
education.  He  considered  that  if  a  man's  emolu- 
ments be  precisely  the  same,  whether  he  does  or  does 
not  perform  some  very  laborious  duty,  it  is  his  in- 
terest either  to  neglect  it  altogether  or  perform  it  in 
a  careless  and  slovenly  manner ;  and  that  were  there 
no  public  institutions  for  education,  no  system  nor- 


124  DUTIES   OF   GOVERNMENT. 

science  could  be  taught  for  which  there  was  not 
some  demand.  A  private  teacher  could  never  find 
his  account  in  teaching  either  an  exploded  and  an- 
tiquated system  of  a  science  acknowledged  to  be 
useful,  or  a  science  universally  believed  to  be  a 
mere  useless  and  pedantic  heap  of  sophistry  and 
nonsense.  Such  systems,  such  sciences,  can  subsist 
nowhere  but  in  these  incorporated  societies  for  edu- 
cation, whose  prosperity  and  revenue  are,  in  a  great 
measure,  independent  of  their  reputation,  and  alto- 
gether independent  of  their  industry. 

Such  have  been  the  views  of  this  first  of  econ- 
omists upon  this  important  subject.  I  have  given 
his  words — they  are  worthy  of  the  gravest  con- 
sideration. These  are  among  the  most  serious 
dangers  against  which  universities  have  to  guard. 
Adam  Smith  argues  not  merely  that  it  is  wrong  to 
tax  one  part  of  the  community  for  the  sake  of 
endeavoring  to  give  a  higher  class  of  knowledge  to 
the  other,  but  that  these  endowments  are  positively 
injurious  to  science  and  education.  Can  this  be 
true  ?  Does  independent  wealth  destroy  the  desire 
for  knowledge  and  the  zeal  to  communicate  it  to 
others  ?  And  is  that  poverty  which  we  have  learned 
to  mourn  as  the  wretched  companion  of  laborious 
genius,  absolutely  then  the  condition  by  which  that 
genius  is  forced  to  labor  ?  In  most  numerous  in- 
stances it  certainly  has  happened  that  apparently 
the  most  triumphant  success  in  a  college  career  has 


EDUCATION.  125% 

been  the  ruin  of  the  fortunate  individual,  in  every 
point  of  view  except  his  material  comfort.  High 
and  varied  talent  and  strenuous  industry  have  often 
found  in  these  old  universities  a  sudden  grave  by 
obtaining  a  comfortable  and  idle  competency ! 

And  yet  few  things  are  greater  than  a  well- 
conducted  national  university,  wherever  it  is  to  be 
found,  or  such,  at  least,  as  one  might  be  made.  A 
national  university — at  the  same  time  flinging  open 
its  gates  to  all — embracing  amongst  its  professors 
the  matured  intellect  of  the  nation,  affording  the* 
soundest  instruction  in  the  varied  branches  of  that 
social  education  becoming  a  gentleman,  and  em- 
ploying that  special  discipline  necessary  for  individ- 
ual professions — cultivating  art,  elucidating  anti- 
quity, instructing  the  youth  of  a  nation  in  the 
practice  of  its  laws,  and  with  funds  for  the  assist- 
ance of  penniless  young  men  to  educate  themselves 
for  the  professions  of  their  choice — this  is  one  of 
the  noblest  institutions  of  civilization. 

Can  it  be  said  to  be  injurious  for  the  nation  to 
continue  the  primary  instruction  given  to  the  poor 
up  to  the  highest  order — to  rescue  from  the  drudg- 
ery of  manual  labor  the  intellects  which  occasion- 
ally appear  amongst  that  peasantry  which  has 
produced  such  men  as  Arkwright  and  Robert  Burns? 
National  education  may  be  understood  thus :  one 
grand  system  of  public  instruction,  given  and  reg- 
ulated by  the  State,  commencing  from  the  village 


126  DUTIES    OF   GOVERNMENT. 

school,  and  proceeding  step  by  step  to  the  college — 
higher  still  to  the  institute — to  the  university — the 
gates  of  science  opened  wide  to  all  the  talents — no 
parish  without  a  school,  no  town  without  a  college, 
no  city  without  a  faculty — one  great  net-work  of 
intellectual  studia,  lycea,  gymnasia,  colleges,  chairs, 
libraries,  mingling  the  radiance  of  their  knowledge 
over  the  surface  of  the  country — everywhere  arous- 
ing capacities  and  animating  vocations ;  in  a  word, 
the  ladder  of  human  knowledge,  held  firmly  by  the 
hand  of  the  State,  placed  in  darkness  the  most 
obscure,  and  ending  in  the  light.  Such  a  system 
may  yet  exist.  It  does  not  now. 

A  university  has  two  functions  :  one  to  be  a  center 
for  educated  intellectual  men,  to  pursue  together 
the  investigations  of  science ;  the  other  as  a  place 
for  superior  education,  whether  general  or  profes- 
sional. The  success  which  has  attended  the  old 
universities  of  Europe  has  arisen  principally  from 
their  discharging  the  first  function.  A  college  has 
no  magical  power  to  make  scholars.  The  education 
given  by  endowed  teachers,  wholly  independent  of 
their  pupils,  never  has  been,  and  never  can  be,  so 
successful  as  where  a  teacher  is  paid  directly  for  the 
work  which  he  does.  That  the  portion  of  collegiate 
endowments  applied  for  this  first  purpose  has  been 
well-spent  money,  the  names  of  Sir  William  Black- 
stone,  Adam  Smith,  Judge  Story,  Chancellor  Kent, 
Guizot,  Niebuhr,  and  Savigny  prove — all  lecturers  in 


EDUCATION.  127 

colleges,  and  who,  by  their  genius  and  research,  have 
advanced  to  the  highest  degree  of  excellence  the 
subjects  which  they  taught.  Therefore,  taxation 
for  the  first  purpose  is  right,  as  a  homage  to  science 
and  art ;  and  in  order  to  provide  their  votaries  with 
the  means,  untrammeled  by  worldly  care,  to  follow 
their  favorite  pursuits.  But  taxation  of  the  entire 
community  for  the  education  of  some  of  the  upper 
and  middle  classes,  through  means  of  universities, 
cannot  be  justified  with  certainty.  Still,  incidental 
to  the  first  function  of  a  university  is  a  certain 
proportion  of  education.  Unquestionably,  in  most 
branches  of  science,  teaching  improves  the  teacher. 

The  entire  question  is  one  of  the  greatest  difficulty, 
and  not  to  be  settled  until  a  very  distant  period.  In 
the  meantime,  vast  endowments  at  present  exist  for 
the  purpose  of  giving  superior  education.  And  it  is 
our  duty  to  render  them  as  available  as  possible  to 
satisfy  the  wants  of  the  age,  and  to  aid  the  progress 
of  society. 

Education  is  spreading  through  the  masses  of  the 
people,  to  prepare  them  for  the  social  changes  that 
ensue  in  the  progress  of  society.  We  are  advancing 
in  our  social  phases  from  system  to  system,  ever 
nearer  to  the  truths  of  Political  Science.  We  move 
slowly ;  but  there  is  nothing  of  which  we  ought  to 
be  so  convinced  as  the  slowness  of  progress.  In  the 
scheme  of  the  universe,  centuries  are  but  seconds — 
ages  produce  the  diamond.  How  long  did  the 


128  DUTIES   OF   GOVERNMENT. 

granite  and  marble  slumber  in  darkness,  from  the 
time  they  were  fused  in  the  primeval  earth  until 
the  time  when  the  artist's  skill  wrought  them  into 
the  Temple  of  Theseus,  the  Parthenon,  the  Colos- 
seum, St.  Peter's  !  So  those  who,  in  the  civilized 
countries  of  the  world,  now  cultivate  the  Social 
Sciences,  are  forming  the  materials  from  which  some 
future  statesman  shall  rear  a  social  fabric,  more  en- 
lightened, more  equal,  more  just,  better  fitted  for 
the  progress  of  the  civilized  world. 

It  is  true  that,  in  this  great  age  of  discoveries,  of 
events,  of  conquests,  of  freedom,  progress  is  moving 
at  an  accelerated  pace.  In  all  the  free  civilized 
countries  of  the  world,  merit,  unaided  by  birth  or 
fortune,  can  now  force  its  way  to  the  very  highest 
positions.  Behold  what  a  future  of  glory,  thought, 
intelligence,  this  principle  has  unfolded  !  "  A  high 
ambition  entertained  independently  of  social  station, 
expansion  and  boldness  in  political  thought ;  desire 
for  intervention  in  the  affairs  of  the  realm  ;  full  of 
consciousness  of  the  dignity  of  man  as  a  human 
being,  and  of  the  extent  of  his  power,  if  he  have 
capacity  to  exercise  it — these  are  sentiments  and 
dispositions  altogether  modern,  the  proceeds  of 
modern  civilization,  and  the  fruits  of  that  glorious 
and  elastic  generality  which  characterizes  it."  •  The 
exertions  formerly  made  only  by  privileged  races  or 
classes  are  now  participated  by  all.  The  entire 

iGuizot's  "History  of  Civilization,"  Lecture  VIE. 


DIVISIONS   OF   JURISPRUDENCE.  129 

community,  instead  of  a  small  section  only,  works 
for  advancement.  And,  in  consequence,  the  human 
race  has  within  the  last  two  centuries  accomplished 
more  material  prosperity  than  in  all  the  former 
ages.  At  the  same  time,  we  may  be  assured  what  a 
grand  career  is  yet  before  mankind,  when  we  reflect 
how  minute  a  portion  of  the  earth  is  occupied  by 
free  civilized  men.  We  are  but  in  the  infancy  of 
civilization.  To  continue  this  glorious  progress  the 
first  requisite  is  social  order — security. 


DIVISIONS   OF   JURISPRUDENCE. 

Eights  and  duties  arise  between  different  States 
or  their  subjects,  and  form  the  province  of  Inter- 
national Law. 

International  Law.  is  the  rule  which  civilized  in- 
dependent societies  observe  toward  one  another  in 
modern  times.  So  far  as  it  is  capable  of  being 
enforced,  it  conies  within  the  province  of  Positive 
Law.  The  term  "  international "  is  of  recent  origin. 
Dr.  Zouch,  in  1650,  first  distinguished  jus  inter  gent es 
from  the  Roman  jus  gentium.  D' Aguesseau,  in  1757, 
distinguished  le  droit  entre  les  nations  from  le  droit 
de  nations.  Finally,  Bcntham,  about  the  year  1790, 
invented  the  term  "  international." 

A  great  portion  of  what  is  called  International 
Law  cannot  be  yet  said  to  come  under  the  denomi- 

JURISPRUDENCE — 9. 


130  DIVISIONS    OF   JURISPRUDENCE. 

nation  of  Positive  Law ;  and  Political  Law  is  in  the 
same  defective  condition  as  International  Law.  No 
punishment  can  be  assigned  for  the  offenses  of  the 
sovereign.  Quis  custodiet  ipsos  custodes  ?  All  that 
human  wisdom  has  been  able  to  devise  is  a  system 
of  precautions  and  indirect  means,  rather  than  a 
system  of  legislation.  A  treaty  between  two  na- 
tions is  an  obligation  which  does  not  possess  the 
same  force  as  a  contract  between  two  individuals ; 
and  the  organization  of  International  Law  remains 

o 

most  incomplete.  In  this  department  of  the  Science 
of  Jurisprudence  there  is  a  great  desideratum. 
The  complete  recognition  of  this  branch  of  Juris- 
prudence will  not  take  place  until  some  international 
code  be  adopted  by  the  principal  civilized  nations, 
promulgated  by  their  authority,  expounded  by  their 
international,  tribunals,  and  enforced  by  their  com- 
bined strength  in  the  last  resort. 

The  security  of  the  civilized  nations  of  the  hu- 
man race  would  be  fixed,  so  far  as  it  depends  on 
law,  if  it  were  possible  now  to  raise  Political  and 
International  Laws  to  the  rank  of  complete  and 
organized  sciences. 

In  accordance  with  the  fourfold  division  of  Posi- 
tive Law,  I  divide  Jurisprudence  into  four  parts, 
termed,  respectively,  Civil,  Criminal,  Political,  and 
International. 

Civil  Jurisprudence  is  concerned  with  those 
rights  which  are  sufficiently  protected  by  enforcing 


DIVISIONS    OF   JURISPEUDENCE.  131 

performance,  or  by  awarding  compensation  to  the 
injured  party  upon  any  infringement  of  them.  This 
performance  or  compensation  is  enforced  by  civil 
process. 

Criminal  Jurisprudence  punishes  the  violation  of 
a  right  on  behalf  of  the  community,  in  many  cases 
where  no  compensation  can  be  awarded.  This  pun- 
ishment is  effected  by  criminal  process. 

Political  Jurisprudence  embraces  the  province  of 
government,  and  its  relations  to  the  people. 

International  Jurisprudence  is  separated  into  two 
divisions,  public  and  private. 

Public  International  Law  defines  and  adjusts  the 
mutual  rights  and  duties  of  the  governments  of  dif- 
ferent States. 

Private  International  Law  defines  and  adjusts  the 
mutual  rights  and  duties  of  individual  citizens  in 
different  States.  Within  the  sphere  of  International 
Law  are  included  the  greatest  social  and  political 
problems  of  the  age,  amongst  them  the  right  of 
intervention,  the  liberty  of  the  individual,  his  inde- 
pendence of  his  own  government,  and  his  right  to 
call  for  protection  against  wrong. 

In  point  of  expression,  the  whole  body  of  the 
Positive  Law  of  a  State  has  been  usually  divided 
into  Common  and  Statute,  or  unwritten  and  written. 

The  Common  Law  is  the  collection  of  rules  of 
civil  conduct  recognized  by  the  members  of  the  com- 


132  DIVISIONS   OF   JURISPRUDENCE. 

iiiunity  without  any  positive  interference  of  the  leg- 
islative power. 

The  Statute  Law  is  the  law  prescribed  and  pro- 
mulgated in  writing  by  the  supreme  power  of  the 
State. 

The  object  of  a  statute  is  to  fix  the  nature  of  a 
legal  relation,  by  which  the  existence  of  that  legal 
relation  may  be  secured  against  error  or  caprice. 

Both  Common  and  Statute  Law  fall  under  the 
denomination  of  Positive  Law.  They  both  spring 
from  the  same  authoritative  force — the  will  of  the 
community.  And  custom  is  the  sign  by  which  we 
recognize  that  Common  Law  which  arises  and 
grows  amongst  a  people  as  naturally  and  necessarily 
as  their  language. 

The  Common  Law  has  been  called  unwritten  law, 
lex  non  scripta — because,  without  any  interference 
of  a  legislative  body,  it  is  a  rule  prescribed  by  the 
common  consent  and  agreement  of  the  community, 
as  applicable  to  its  different  relations,  and  as  capa- 
ble of  preserving  the  peace,  good  order,  and  harmony 
of  society — rendering  to  every  man  that  which  of 
right  belongs  to  him. 

The  Common  Law  is  not  the  production  of  the 
brain  of  one  legislator,  it  is  the  growtli  of  time  and 
circumstance,  the  offspring  of  the  necessities  which 
the  manners,  religion,  and  circumstances  of  a  nation 
have-  imposed.  Antecedent  to  all  law  enacted  by 
the  supreme  legislative  power — antecedent  to  the 


DIVISIONS   OF   JURISPRUDENCE.  133 

existence  of  the  legislative  body  in  a  State — its  in- 
habitants are  governed  by  customs,  spontaneously 
arising,  and  binding  by  the  force  of  common  opin- 
ion. These  ancient  customs  of  the  people  must  be 
recognized  by  the  judges,  as  much  as  the  general 
expression  of  their  will  through  their  representa- 
tives in  the  legislature,  and  must,  equally  with  the 
statutes  of  a  realm,  be  considered  as  Positive  Law. 
The  sources  of  the  Common  Law  are  in  the 
usages,  habits,  manners,  and  customs  of  a  people. 
Every  nation  must  of  necessity  have  its  Common 
Law,  and  such  law  will  be  simple  or  complicated  in 
its  details,  according  as  the  society  is  simple  or  com- 
plicated in  its  relations.  Some  practical  rules  suf- 
fice a  wandering  horde  of  savages ;  laws  minute  and 
nice  in  detail  are  demanded  by  the  exigencies  of  a 
nation  which  agriculture  and  commerce  have  en- 
riched, which  civilization  and  the  liberal  arts  have 
polished.  The  Common  Law,  therefore,  is  never 
stationary,  but  is  modified  and  extended  by  analogy, 
construction,  and  custom,  so  as  to  embrace  the  new 
relations  which  spring  from  a  change  in  the  society. 
In  modern  times,  the  new  principles  which  are  ar- 
gued by  advocates  and  determined  by  judges,  are 
principles  of  the  Common  Law,  although  they  are 
not  found  in  the  old  books.  They  are  held  to  be 
immutable  principles,  which  have  slumbered  in  their 
repositories,  because  the  occasion  which  called  for 
their  exposition  has  not  arisen. 


134  DIVISIONS   OF   JURISPRUDENCE. 

The  Common  Law  system  of  England,  as  admin- 
istered by  the  judges  of  the  land,  consists  in  apply- 
ing to  new  combinations  of  circumstances  those 
rules  of  law  which  are  derived  from  legal  principles 
and  judicial  precedents.  For  the  sake  of  attaining 
uniformity,  consistency,  and  certainty,  those  rules 
must  be  applied  by  the  judges  to  all  cases  which 
arise  where  they  are  not  plainly  unreasonable  and 
inconvenient.  And  the  judges  are  not  at  liberty  to 
reject  them,  and  to  abandon  all  analogy  to  them  in 
those  cases  to  which  such  rules  have  not  yet  been 
judicially  applied,  because  the  expounders  of  the 
law  may  consider  that  the  rules  are  not  so  conven- 
ient and  reasonable  as  those  which  they  themselves 
could  have  devised. 

It  was  important,  under  the  early  feudal  govern- 
ments, that  the  judges  should  have  been  strictly  tied 
up  by  precedent;  but  in  the  present  day,  in  a  free 
country  such  as  England,  with  judges  of  the  inde- 
pendence and  integrity  attained  in  modern  times 
in  England — with  the  publicity  of  justice,  and  the 
liberty  of  the  press  as  security  against  corruption — 
it  does  not  seem  necessary  that  the  judges  should  be 
so  bound  by  the  ancient  strict  rules  of  precedent, 
many  of  which  might  usefully  be  relaxed  in  the 
progress  of  society. 

In  the*  English  phraseology  another  division  of 
law  is  into  Common  Law  and  Equity. 

Equity  is  defined  as  the  correction  of  strict  law 


DIVISIONS    OF   JURISPRUDENCE.  135 

wherever  it  is  deficient  owing  to  its  universality. 
This  definition  has  been  adopted  by  Grotius  and 
Puffendorf .  Grotius  says  :  Equity  is  properly  and 
simply  a  virtue  of  the  will,  corrective  of  that  where- 
in the  law  is  deficient  on  account  of  its  universal- 
ity. That  is  equitable  by  which  the  law  is  corrected. 
Proprie  vero  et  singulariter  cequitas  est  virtus  vol- 
untatis,  correctrix  ejus,  quo  lex  propter  universalita- 
tem  deficit.  JEquwn  id  est  quo  lex  corrigitur. 
Thus,  that  species  of  law  which  may  be  termed 
unwritten,  in  the  sense  of  not  enacted  by  legisla- 
tive authority,  and  which  in  England  is  called 
Equity,  is  at  first  wholly  distinct  from  the  Common 
Law,  or  that  part  of  the  immemorial  and  recognized 
custom  of  the  realm  which  is  stricti  juris ;  and  is 
always  distinct  from  the  Statute  Law,  except  so  far 
as  the  Statute  Law  in  the  progress  of  society  pro- 
fesses to  regulate  the  equitable  jurisdiction.  In 
its  redress  of  the  evils  flowing  from  an  unbending- 
adherence  to  the  rules  of  Common  Law,  Equity 
may  be  termed,  according  to  SchlegePs  definition, 
the  law  qualified  by  historical  circumstances.  In 
respect  to  the  Statute  Law,  the  necessity  for  the 
application  of  Equity  happens  either  against  the 
design  and  inclination  of  the  lawgiver,  or  with  his 
consent.  In  the  former  case,  particular  facts  may 
have  escaped  his  knowledge,  or  facts  may  arise  in 
the  progress  of  society  requiring  a  less  strict  appli- 
cation of  the  law's  unbending  rule.  In  the  latter 


136  DIVISIONS   OF   JURISPRUDENCE. 

case,  the  legislator  may  be  aware  of  all  the  facts ; 
but  from  their  number  and  complexity  may  be  una- 
ble or  unwilling  to  recite  and  provide  for  them. 
Cases  admit  of  infinite  varieties  of  circumstances: 
the  law  must  be  conceived  in  general  terms.  So 
Mr.  Charles  Butler  has  said  that  Equity,  as  distin- 
guished from  Law,  arises  from  the  inability  of  hu- 
man foresight  to  establish  any  rule  which,  however 
salutary  in  general,  is  not,  in  some  particular  cases, 
evidently  unjust  and  oppressive.  And  in  this  lie 
has  f ollowed  the  Digest.  Neither  laws  nor  decrees 
of  the  senate  can  be  so  written  that  all  cases  may 
be  embraced  wherever  and  whenever  they  may  hap- 
pen :  but  it  is  sufficient  that  those  be  included  which 
most  frequently  occur.  Neque  leges  neque  senatus 
consulta  ita  scribi  possunt  ut  omnes  casus  qua  quan- 
doque  inciderint,  compreliendantur :  sed  sufficit  ea 
quce  plerumque  accidunt  contineri. 

The  method  of  administering  law  in  the  early 
history  of  every  people  is  technical.  The  system 
of  pleading  in  the  ancient  Roman  Law,  the  system 
of  Common  Law  pleading  in  England,  the  formal- 
ities of  written  instruments  required  by  statutes — 
all  have  frequently  had  the  result  of  deciding  cases, 
not  upon  the  real  merits,  but  upon  the  most  tech- 
nical subtleties.  Judges  in  the  early  stages  of  law 
in  all  countries  are  unable  to  decide  upon  conflict- 
ing evidence  according  to  what  is  true  and  just : 
they  endeavor  to  attain  certainty.  But  in  the  prog- 


DIVISIONS    OF   JURISPRUDENCE.  137 

ress  of  society  the  method  of  administering  justice 
ceases  to  be  technical,  and  endeavors  to  be  equitable. 
Thus,  in  the  history  of  the  ancient  Roman  Law, 
the  technical  system  was  finally  suppressed,  and 
the  equitable  jurisdiction  of  the  prastor  became 
paramount. 

But  the  technical  meaning  of  Equity,  as  used  in 
the  English  Courts  of  Law,  is  different  from  that 
meaning  which  has  been  employed  by  moralists  and 
jurists.  Equity,  as  understood  by  English  lawyers, 
is  that  portion  of  remedial  justice  which  is  exclus- 
ively administered  by  fhe  Court  of  Chancery  as 
contradistinguished  from  that  portion  of  remedial 
justice  which  i,s  exclusively  administered  by  the 
Courts  of  Common  Law.  The  Courts  of  Common 
Law  in  England  are  Courts  of  Limited  Jurisdiction, 
able  to  give  relief  only  in  certain  prescribed  forms 
of  action,  to  which  the  party  must  resort  to  give 
him  a  remedy ;  and  if  there  be  no  prescribed  form 
to  reach  the  case,  he  is  at  law  remediless.  But  the 
forms  in  the  Courts  of  Equity  are  flexible,  and 
their  decrees  can  be  adjusted  to  all  the  varieties  of 
circumstances  which  may  arise.  Thus,  the  Courts 
of  Equity  have  had  a  twofold  function :  they  have 
relieved  against  the  rigor  of  the  Common  Law 
Courts,  as,  for  example,  in  the  cases  which  they 
have  held  to  be  not  within  the  spirit,  though  within 
the  letter,  of  the  Statute  of  Frauds.  And  they 
have  also  administered  justice  where  it  was  impos- 


138  CODIFICATION. 

sible  for  the  Common  Law  Courts  so  to  do  by  reason 
of  their  limited  jurisdiction  and  defective  machinery. 
The  most  precise  definition  of  a  Court  of  Equity, 
as  understood  in  England,  Ireland,  and  the  United 
States,  is,  that  it  is  a  Court  having  jurisdiction  in 
the  case  of  rights  recognized  and  protected  by  the 
Positive  Law  of  the  country,  where  a  plain,  ade- 
quate, and  complete  remedy  cannot  be  had  in  the 
Courts  of  Common  Law. 


CODEFICATIOK 

Historically,  Law  thus  arises  amongst  a  people. 
First,  the  Common  Law,  like  their  language,  springs 
from  their  common  consciousness.  That  primitive 
customary  law  is  antecedent  to  all  formal  legislation. 
Next,  the  Statute  Law  in  its  origin  in  every  State 
embraces  public  law  and  defines  the  constitution. 
In  the  development  of  society,  law  becomes  twofold. 
Its  primitive  fundamental  principles  still  continue  to 
live  in  the  common  consciousness  of  the  people.  Its 
more  accurate  formation  and  application  to  particu- 
lar cases  become  the  particular  vocation  of  the  class 
of  lawyers.  Finally,  the  Statute  Law  is  busied 
with  details.  It  corrects  the  errors  and  supplies  the 
deficiencies  of  the  Common  Law  in  private  matters. 

In  the  last  stage  of  legislation  in  a  State,  the 
principle  of  Codification  appears.  It  appears  to  be 
a  natural  law  that  whilst  a  nation  is  rapidly  pro- 


CODIFICATION.  139 

grossing  in  wealth,  knowledge,  and  civilization,  it  is 
impossible  to  codify  the  laws.  Whilst  the  neces- 
sary preparation  for  a  digest  is  taking  place,  already 
has  the  natural  progress  outstripped  the  legislators. 
When  a  complete  code  of  laws  is  possible  for  a  na- 
tion, its  progress  must  have  been  arrested  ;  it  must 
already  have  reached  that  maturity  in  which  further 
development  bec&mes  difficult  if  not  impossible. 
Historical  examples  are  the  Code  Justinian  and  the 
Code  Napoleon.  From  the  consolidation  of  the 
Roman  Law  under  Justinian,  the  development  of 
the  Eoman  Law  ceased :  the  development  of  the 
Roman  civilization  had  already  ceased.  France  for 
some  time  has  appeared  stationary  in  wealth  and 
population. 

Codification  is  attended  with  many  dangers. 
There  is  the  risk  of  error  in  definitions.  There  is 
the  risk  of  perpetuity  being  given  to  those  errors  by 
the  legislative  enactment,  so  as  to  preclude  their  cor- 
rection upon  discovery,  as  under  the  present  mode 
of  administering  the  Common  Law  in  England. 
Definitions  in  a  statute  may  be  useful,  when  they 
contain  a  command  or  a  prohibition,  when  their  ob- 
ject is  to  determine  acts  which  individuals  are 
bound  to  perform,  or  to  abstain  from ;  but  when 
they  have  no  other  object  than  to  make  known  the 
nature  of  things,  they  are  useless  and  dangerous, 
and  should  be  left  to  science.  In  Codification,  there 
is  also  the  danger  of  cramping  the  development  of  the 


140  CODIFICATION. 

scientific  principles  of  the  Common  Law,  and  of  re- 
tarding the  adoption  of  advanced  rules  of  justice 
more  consistent  with  the  public  welfare  and  the 
progress  of  society. 

It  is  impossible  to  codify  the  laws  of  a  nation  in 
such  a  manner  as  that  no  change  will  be  necessary. 
The  rights  of  the  different  classes  of  society  are 
continually  changing,  and  the  narrowness  of  human 
wisdom  cannot  foresee  the  cases  which  time  dis- 
closes. 

Nor  does  the  conversion  of  Common  Law  into 
Statute  Law  render  it  absolutely  certain.  It  is  still 
exposed  to  the  risks  of  ambiguous  construction, 
arising  from  the  natural  imperfection  of  language 
as  the  representative  of  thought,  and  from  the  im- 
perfect use  of  language. 

But  by  arrangement  and  classification  the  disad- 
vantages of  the  accumulations  of  books  and  the 
judgments  of  the  Courts  may  be  diminished. 

The  Statute  Law  may  be  improved  by  a  more 
scientific  method  of  enactment  and  the  skillful  use 
of  appropriate  language.  The  carelessness  of  former 
legislation  may  be  remedied  by  a  strict  definition  of 
terms,  and  by  a  strict  adherence  to  the  judicial 
phraseology  as  having  a  fixed  and  generally  recog- 
nized if  not  technical  meaning. 

The  wants  of  society  are  so  varied,  the  communi- 
cation of  men  so  active,  their  interest  so  multiplied, 
and  their  relations  so  extended,  that  it  is  impossible 


CODIFICATION.  141 

for  the  legislator  to  foresee  all.  In  the  materials 
which  particularly  fix  his  attention,  there  is  a  crowd 
of  details  which  escape  him,  or  which  are  too  con- 
tradictory or  fleeting  to  become  the  object  of  a  legal 
test.  It  is  impossible  to  chain  the  action  of  time,  to 
oppose  the  course  of  events,  or  prevent  the  insensi- 
ble change  of  manners.  It  is  impossible  to  calcu- 
late in  advance  what  experience  alone  can  reveal. 
A  code,  however  complete  it  may  appear,  is  no 
sooner  finished  than  a  thousand  unexpected  ques- 
tions present  themselves  to  the  magistrate.  Laws 
once  digested  remain  as  they  have  been  written. 
Men,  on  the  contrary,  never  repose — they  always 
act ;  and  this  movement  which  never  stops,  and  the 
effects  of  which  are  differently  modified  by  differ- 
ent circumstances,  produce  at  each  instant  some 
new  combination,  some  new  fact,  some  new  result. 
Many  things  are  then  necessarily  abandoned  to  the 
empire  of  custom,  to  the  discussion  of  learned  men, 
and  to  the  arbitrament  of  the  judges.  The  duty  of 
the  law  is  to  fix,  with  enlarged  views,  the  general 
maxims  of  right,  to  establish  principles  fertile  in 
their  consequences,  and  not  to  descend  into  the  de- 
tail of  the  questions  which  may  arise  upon  each 
matter.  It  is  for  the  magistrate  and  the  lawyer, 
penetrated  with  the  spirit  of  the  laws,  to  direct  the 
application  of  them.  Hence,  amongst  all  polished 
nations,  in  addition  to  the  laws  made  by  the  legisla- 
ture, a  number  of  maxims,  decisions,  and  doctrines 


142  CODIFICATION. 

is  daily  promulgated  by  practice  and  by  judicial 
duties.  The  professors  of  the  law  are  reproached 
with  having  multiplied  subtleties,  compilations,  and 
commentaries.  This  reproach  may  be  well  founded. 
But  what  art,  what  science,  does  not  deserve  it? 
Must  a  particular  class  of  men  be  accused  of  what 
is  only  the  general  tendency  of  the  human  mind  ? 
There  are  times  when  we  are  condemned  to  igno- 
rance because  we  have  not  books ;  there  are  others 
where  instruction  is  difficult  because  we  have  too 
many.  Excess  in  commentary,  discussion,  and  au- 
thorship is  to  be  pardoned  above  all  in  Jurispru- 
dence. We  cannot  hesitate  to  believe  this  if  we  re- 
flect on  the  innumerable  ties  which  bind  citizens. 
There  is  a  constant  development  and  a  successive 
progression  of  the  objects  with  which  the  magistrate 
and  the  jurisconsult  are  obliged  to  busy  themselves. 
The  course  of  events  modifies  in  a  thousand  ways 
the  social  relations.  He  who  blames  subtleties  and 
commentaries  becomes,  in  an  individual  cause,  the 
subtle,  fastidious  commentator.  It  would  be  with- 
out doubt  desirable  that  all  matters  should  be  regu- 
lated by  laws.  But  in  default  of  a  precise  text  on 
each  matter,  an  ancient  usage,  constant  and  well  es- 
tablished, an  uninterrupted  current  of  similar  de- 
cisions, an  opinion  or  a  received  maxim,  holds  the 
place  of  law.  When  we  are  directed  by  nothing 
that  is  established  or  known,  when  we  treat  of  an 


CODIFICATION.  143 

absolutely  novel  fact,  \ve  ascend  to  the  principles  "of 
natural  justice. 

Bentham  enumerates  four  conditions  which  ought 
to  belong  to  a  code  of  laws,  and  which  ought  to  be 
regarded  in  its  division. 

The  first  condition  of  the  code  should  be  the 
greatest  happiness  of  the  greatest  number. 

It  should  have  for  its  end  the  general  interest ; 
and  if  this  condition  has  been  satisfied  in  the  politi- 
cal code,  that  is,  in  the  code  which  establishes  the 
different  powers  of  the  State,  it  will  be  easy  to  fol- 
low it  up  in  all  the  other  branches  of  legislation. 

The  second  condition  is  integrality ;  that  is  to 
say,  it  ought  to  be  complete,  or,  in  other  words, 
embrace  all  the  legal  obligations  to  which  a  citizen 
should  be  subjected.-. 

The  third  condition  is  imperfectly  expressed  by 
the  word  method.  Bentham  means  by  this,  not 
only  precision  of  language  and  clearness  of  style, 
but  such  an  arrangement  as  would  allow  all  those 
interested  in  it  easily  to  acquire  a  knowledge  of  the 
law.  All  that  is  included  under  this  comprehensive 
head  is  expressed  by  the  word  cognoscibility  ;  that  is 
to  say,  the  law  should  have  a  great  aptitude  to  be 
known. 

There  is  no  one  word  which  can  express  the 
fourth  condition  to  be  satisfied  by  a  body  of  laws. 
The  meaning  must  be  conveyed  by  a  periphrasis. 
Each  law  should  be  accompanied  by  a  commentary 


144  CODIFICATION. 

or  exposition  of  the  grounds  on  which  the  law  is 
founded,  showing  what  relation  it  bears  to  general 
utility.  This  commentary  is,  as  it  were,  a  justifica- 
tion of  the  law ;  justifiability  of  the  law  would, 
perhaps,  be  the  proper  word  to  express  this  charac- 
teristic of  good  laws,  since  those  only  are  good  for 
which  we  can  give  good  reasons. 

A  code  of  laws  is  like  a  vast  forest :  the  more  it 
is  divided  the  better  it  is  known. 

The  first  principle  of  division  in  a  code  consists 
in  separating  laws  of  universal  interest  from  those 
of  special  or  individual  interest. 

There  are  some  laws  with  which  every  man  should 
always  be  acquainted,  and  there  are  others  which 
are  only  required  on  certain  occasions;  in  other 
words,  there  are  laws  of  a  permanent,  and  others  of 
a  temporary  and  occasional  interest. 

The  penal  code  is  the  first  in  importance ;  all 
human  actions  which  are  the  object  of  law  are 
necessarily  included  in  it.  "What  is  called  the  civil 
law  is  only  a  collection  of  explanations,  or,  in  other 
words,  an  exposition  of  what  is  contained  in  the 
penal  code.  Thus,  the  penal  code  prohibits  from 
taking  an  article  of  property  to  which  the  taker 
has  no  right:  the  civil  code  explains  the  differ- 
ent circumstances  which  give  such  right,  or  make 
anything  property.  The  penal  code  forbids  adul- 
tery :  the  civil  treats  of  all  that  concerns  the  mar- 


STUDY   OF   JURISPRUDENCE.  145 

riage  state,  and  the  reciprocal  obligations  of  man 
and  wife. 

The  true  method  of  Codification  is  from  time  to 
time  to  select  individual  portions  of  the  law,  and  to 
digest  and  arrange  such  portions  in  scientific  order. 


THE    STUDY  OF   JURISPRUDENCE. 

The  development  of  Jurisprudence  has  arisen  in 
two  ways — from  the  individual  labors  of  learned 
men,  and  from  the  natural  progress  of  society. 
Thus,  one  important  branch  of  law  has  sprung,  in 
modern  times,  from  the  necessities  of  commercial  in- 
tercourse. International  Law  is  entirely  the  off- 
spring of  modern  civilization,  and  is  the  latest  im- 
portant discovery  in  Political  Science.  Communities 
which  anciently  admitted  of  no  political  superior 
upon  the  earth — no  law  to  guide  them  in  their  inter- 
course with  foreigners  except"  the  dictates  of  capri- 
cious ambition — are  now  willing  to  regard  themselves 
as  subject  to  certain  rules,  the  observance  of  which 
is  expedient  for  the  interests  of  all.  In  ancient  times 
International  Law  had  no  existence.  But  from  the 
number  of  civilized  States  in  modern  Europe — of 
nearly  equal  power,  of  similar  political  and  ecclesi- 
astical institutions,  and  united  in  the  friendly  ties  of 
commerce — a  set  of  rules  has  been  adopted  in  diplo- 
matic intercourse  and  the  settlement  of  international 
disputes.  International  Law,  however,  is  only  Pos- 

JURISPRUDENCE— 10. 


146  STUDY    OF   JURISPRUDENCE. 

itive  Law,  in  so  far  as  it  will  be  supported  by  an 
appeal  to  arms  in  the  last  resort.  And  although  the 
appeal  to  arms  may  not  be  resorted  to  in  every  case, 
yet  the  fear  of  incurring  general  hostility  operates 
upon  nations,  keeping  them  within  the  rules  of 
national  comity.  The  term  "  law  of  nations  "  is  used 
by  Vattel  to  designate  the  science  which  teaches  the 
rights  subsisting  between  nations  and  States,  and 
the  obligations  correspondent  to  those  rights.  The 
Law  of  Nations  teaches  the  rule  which  ought  to  be 
observed  :  International  Law  is  the  rule  observed. 
The  origin  and  progress  of  International  Law  is  in 
itself  a  remarkable  step  in  the  march  of  civilization. 
Nations  now  begin  to  acknowledge  their  subjection 
to  laws  in  conformity  with  natural  justice  and  rea- 
son, as  in  the  very  origin  of  society  individuals 
acknowledge  themselves  so  bound.  And  the  devel- 
opment of  International  Law  will  proceed  amongst 
the  civilized  nations  of  the  earth  until  citizens  can 
enjoy,  in  foreign  countries,  all  the  rights  which  they 
enjoy  in  their  own.  There  is  no  good  reason  that 
a  malefactor,  by  changing  his  domicile,  should  evade 
justice.  There  is  no  good  reason  that  a  debt  in- 
curred in  one  civilized  country  should  not  be  re- 
covered with  the  same  facilities  in  all  others. 

The  great  desideratum  in  International  Law  is  a 
code  adopted  by  the  civilized  nations  of  the  earth, 
and  to  be  enforced  in  their  combined  strength  in  the 
last  resort. 


STUDY   OF   JURISPRUDENCE.  147 

The  complete  development  of  International  Law 
can  only  take  place  from  the  influence  of  commerce, 
which  unites  the  human  family  by  the  strongest  tie 
— the  desire  of  supplying  mutual  wants.  Com- 
merce demands  an  international  code  for  the  civil- 
ized nations  of  the  earth ;  so  that  the  laws  of  part- 
nership, insurance,  bills  of  exchange,  shipping,  and 
bankruptcy  may  be  uniform.  Commerce  demands 
that  there  should  be  throughout  the  civilized  world 
a  uniform  standard  of  the  precious  metals,  and  a 
uniform  system  of  coinage.  Commerce  demands  a 
uniform  international  system  of  weights  and  meas- 
ures. Commerce  demands  a  uniform  system  of  tax- 
ation. Commerce  demands  that  debts  should  be 
recovered  with  equal  facility  in  every  country,  irre- 
spective of  the  place  of  contract.  Justice  demands 
that  over  the  entire  world  there  should  be  no  asy- 
lum for  the  criminal.  Literature  demands  that  the 
property  in  its  works  should  be  secured  by  interna- 
tional copyright.  Art  demands  that  the  property 
in  its  inventions  should  be  secured  by  an  interna- 
tional law  of  patents.  If  ever  there  shall  exist  a 
common  coinage  and  uniform  taxation  for  the  civil- 
ized world,  with  international  Courts  of  Justice 
whose  jurisdiction  shall  extend  over  continents,  civ- 
ilization will  owe  these  advantages  to  the  origin  and 
progress  of  International  Law.  Then,  to  use  the 
words  of  Cicero :  There  shall  not  be  one  law  at 
Rome,  another  at  Athens ;  one  now,  another  here- 


148  STUDY    OF   JURISPRUDENCE. 

after ;  but  one  and  the  same  law  shall  obtain  at  all 
places  and  times.  JVbn  erit  alia  lex  Romce,  alia 
AtJienis;  alia  nunc,  alia  posthac  ;  sed  et  apud  om- 
nes  gentes,  et  omnia  tempora  una  eademque  lex  ob- 
tinebit. 

The  study  of  Jurisprudence  will  aid  in  the  most 
important  degree  the  development  of  International 
Law,  and  will  assist  the  progress  of  law  reform  at 
home.  Certainly,  if  there  were  ever  an  age  in 
which  it  was  important  for  gentlemen  to  bo  ac- 
quainted with  the  principles  of  Jurisprudence,  it  is 
the  age  in  which  we  live.  In  matters  of  law  and 
government,  stare  super  antiquas  vias  is  no  longer 
held  to  be  the  leading  maxim.  In  England,  almost 
the  whole  legal  world  is  toiling  in  the  paths  of  law 
reform.  And  the  labors  of  other  countries  are  no 
longer  unknown  and  despised.  The  feudal  system 
of  real  property,  and  many  of  its  attendant  institu- 
tions, are  abolished  in  some  of  the  seats  of  the  oldest 
civilizations.  Certainly  the  experiment  of  agricul- 
ture in  the  hands  of  freemen,  in  farms  of  moderate 
extent  belonging  to  themselves,  is  now  being  tried 
upon  the  most  extensive  scale  in  Continental  Eu- 
rope. And  it  is  at  least  worthy  of  our  attention  to 
study  on  scientific  principles  these  great  phenomena, 
with  the  view  of  introducing  into  the  English  real 
property  reforms  the  best  portions  of  the  new  landed 
system  of  modern  Europe. 

Next  to  the  real  property  reforms,  the  new  systems 


STUDY   OF   JURISPRUDENCE.  149 

of  national  education  attract  our  notice.  It  is  from 
the  combination  of  natural  powers  that  man  derives 
his  civilization.  Having  acquired  a  certain  amount 
of  knowledge,  it  is  partly  optional  with  him  whether 
he  will  make  use  of  the  powers  of  nature,  or  obstin- 
ately struggle  against  them.  And  so,  availing  them- 
selves of  their  natural  capabilities,  some  races  of 
superior  energy  have  arrived  at  a  partially  developed 
civilization.  But  the  cultivated  energy  of  human 
thought  shall  yet  develop  greater  results.  Now,  in 
almost  every  civilized  country,  there  exists  a  vast 
number  of  paupers,  for  whom  civilization  has  been 
in  vain,  to  whom  it  has  scarcely  brought  any  bene- 
fit. For  offenders,  the  law  provides  police,  judges, 
the  prison,  the  scourge,  and  the  gallows.  Some 
States,  a  little  further  advanced  in  social  knowledge, 
try  also  the  effects  of  national  education.  They 
act  thus  upon  the  soundest  principles  of  Political 
Science.  In  moral  and  physical  nature  alike,  over 
the  earth,  we  see  the  results  of  cultivation.  In  phys- 
ical nature,  a  large  extent  of  country  left  as  a  marsh 
or  swampy  forest,  in  its  original  rudeness,  shelters 
beasts  of  prey,  herds  noxious  vermin,  and  from  its 
baleful  precincts  spreads  pestilence  over  the  adja- 
cent country.  Time  advances,  and  with  it  the  steps 
of  civilized  man.  He  fells  the  trees  which  kept  the 
sunlight  from  drying  the  ground.  He  drains  the 
marshes,  which  speedily  bear  abundant  harvests. 
The  wild  beasts,  deprived  of  shelter,  perish  from 


150  STUDY   OF   JURISPRUDENCE. 

the  place  no  longer  fit  for  their  habitation  ;  the  dry 
and  cultivated  ground  no  longer  breeds  fevers  and 
agues.  This  spectacle,  either  in  its  progress  or  in 
its  fruits,  is  witnessed  over  the  entire  earth.  In 
moral  nature  we  now  see  the  minds  of  the  lowest 
class  in  society  left  stagnant  and  disfigured  by  moral 
pollution  and  ignorance.  As  the  earth,  left  to  itself, 
becomes  waste  and  tangled — the  pestilential  abode  of 
reptiles  and  wild  beasts — so  the  mind,  uncultivated, 
produces  crime  and  pollution.  But  in  both  cases,  if 
we  would  perform  our  duty  to  ourselves  and  society, 
we  must  cultivate ;  we  must  cultivate  the  savage 
earth,  we  must  cultivate  the  ignorant  minds  of  the 
poor.  If  we  wish  the  earth  to  be  wholesome  and 
fruitful,  it  must  be  drained  and  cultivated.  So,  too, 
with  the  wholesome  crop  of  knowledge  we  must 
banish  the  bitter  thorns  of  ignorance.  If  we  wish 
the  poor  to  take  their  places  as  citizens  in  society, 
we  must  educate  them,  and,  by  means  of  laws  in 
conformity  with  natural  justice  and  reason,  place 
the  poor  in  a  condition  wherein  they  may  use  that 
education,  and  earn  their  bread.  The  teaching  of 
modern  Political  Science  is,  that  the  true  way  to  pro- 
vide for  the  general  happiness  is  to  give  all  citizens 
an  interest  in  the  prosperity  of  the  nation,  to  leave 
trade  and  labor  free,  and  to  give  the  humblest  a  good 
education.  And  the  countries  which  have  emanci- 
pated and  given  independence  and  education  to  the 


STUDY   OF   JURISPRUDENCE.  151 

lower  classes,  have  not  only  given  liberty  to  them, 
but  security  to  all. 

Political  Science  is  often  abused,  as  not  being 
practical ;  but  it  will  not  be  denied  that  such  ques- 
tions as  these  are  practical. 

So  also,  since  the  arts  of  sculpture  and  painting 
have  been  united  with  manufactures,  and  aid  in 
their  development,  it  is  important  to  consider  on 
what  principle  the  laws  of  civilized  nations  now  re- 
fuse to  the  inventor  the  complete  property  in  his 
works.  Schools  of  design  are  endowed  and  en- 
couraged by  patrons  of  the  fine  arts.  Yet,  in  the 
British  Islands,  the  ingenious  mechanician,  who  in- 
vents new  machinery  to  cheapen  production  and  fa- 
cilitate labor ;  the  artist,  who  with  plastic  skill  de- 
signs the  most  exquisite  forms  for  the  furniture  of 
our  houses ;  the  painter,  who  stamps  with  beauty 
the  plain  creations  of  the  loom,  and  enables  Man- 
chester to  find  a  market  in  China  and  India — all  are 
by  the  present  laws  denied  the  full  property  in  the 
works  of  their  hands  and  brains. 

The  English  law,  with  its  excellent  characteris- 
tics— trial  by  jury,  viva  voce  evidence,  and  publicity 
in  every  stage  of  the  proceedings — has  spread  over 
a  vast  portion  of  the  earth.  In  North  America,  the 
English  law  has  crossed  the  Alleghanies  and  the 
Rocky  Mountains  with  the  emigrants ;  and  on  the 
shores  of  the  Pacific  the  representative  government, 
the  municipal  systems,  and  the  Common  Law  of 


152  STUDY   OF   JURISPRUDENCE. 

England  give  strength  and  liberty  to  nations.  So, 
if  we  turn  to  India  or  Australia,  the  English  law- 
yers may  say : 

"  Quse  regio  in  terris  nostri  non  plena  laboris 
Est!" 

The  study  of  Jurisprudence  is  not  merely  con- 
cerned with  the  permanent  progress  of  the  human 
race  and  the  amelioration  of  society.  Many  believe 
such  ideas  to  be  visionary.  But  there  can  be  noth- 
ing more  strictly  practical  than  the  consideration  of 
such  questions  as  the  legal  burdens  which  press 
upon  the  owners  and  occupiers  of  land,  and  pre- 
vent its  free  transfer  ;  the  reasons  for  the  education 
of  the  poor,  and  the  best  method  to  accomplish  it ; 
the  questions  of  international  copyright,  international 
law  of  patents,  and  international  commercial  code  ; 
and  the  reform  of  legal  procedure.  These  things 
concern  the  prosperity  of  the  entire  community,  and 
it  is  expedient  to  consider  them  upon  scientific  prin- 
ciples. 

Great  men  in  all  ages  have  cultivated  Jurispru- 
dence. Most  of  our  modern  legal  civilization  is  the 
result  of  the  labors  of  those  who,  from  the  original 
rudeness  of  savage  life,  have-developed  the  principles 
of  Civil  and  Political  Right.  A  true  social  idea 
never  disappears.  Once  that  it  has  germinated  in 
certain  right  hearts,  sound  and  logical  minds,  it  bears 
within  itself  something  vital,  divine,  immortal,  which 


STUDY   OF   JURISPRUDENCE.  153 

never  more  perishes  in  its  entirety.  Passions,  inter- 
ests, ignorances,  prejudices,  may  crush  it  under  foot, 
may  mutilate  it  under  the  saber  or  hatchet ;  its 
fruits  are  retarded  for  ages  :  but  the  hand  of  Provi- 
dence is  full  of  ages — at  the  destined  time,  the  liv- 
ing idea,  of  which  the  seed  has  been  spread  and 
multiplied  even  by  the  storms,  bursts  forth  at  once 
in  the  minds  of  all.  The  brute  matter  of  human 
existence  is  wrought  into  society  only  by  length  of 
time.  A  great  and  free  State  is  the  work  of  many 
ages,  of  stupendous  characters,  of  watchful  senates, 
of  sages  and  heroes.  To  form,  support,  and  bring 
such  to  maturity,  the  invention  of  nature  must  be 
stretched  for  thousands  of  years.  We  reap  the 
fruits  of  all  the  political  experiments  which  have 
cost  so  much  time,  care,  and  misery. 


CHAPTER  V. 

HISTORICAL  EEVTEW. 

That  art  is  long  and  time  is  short,  has  been  said 
and  sung  in  many  languages.1  The  old  saying  ap- 
plies to  the  study  of  Jurisprudence  more  than  to 
any  other  subject.  The  general  ideas  of  a  science 
have  been  reduced  to  four  heads  :  to  determine  the 
particular  subjects  of  the  science  ;  to  distinguish 
the  sciences  which  border  on  it,  and  to  indicate  the 
relations  which  it  has  to  them  ;  to  divide  and  subdi- 
vide the  science  thus  precisely  defined  ;  to  give  an 
historical  sketch  of  the  development  of  the  science. 
Some  of  these  objects  have  been  attempted  in  the 
previous  pages. 

Socrates,  the  first  citizen  of  the  world,  com- 
menced the  Political  and  Ethical  Philosophy  of 
Europe.  Plato  preserved  in  writing  the  opinions 
of  Socrates.  Aristotle  analyzed  the  divisions  of 


"0  fiidt  fipdxvS  rj  8k  rexrr?  nauprj.—  Hippocrates. 
"The  lyfe  so  short,  the  craft  so  long  to  learn."—  Chaucer. 
Stctj  ®ett  !  bic  Shtnft  ift  tang, 
llnb  furj  ift  unj'er  Sefccn.—  Goethe. 
"  Art  is  long  and  Time  is  fleeting, 

And  our  hearts,  though  stout  and  brave, 
Still,  like  muffled  drums,  are  beating 
Funeral  marches  to  the  grave."  —  Longfellow. 

154 


HISTORICAL  REVIEW.  155 

Justice.  But  despotism  and  slavery  corrupted  the 
Grecian  politics. 

The  ancient  Roman  Law  is  displayed  to  us  as 
a  blending  of  the  popular  and  technical  elements 
which  exist  in  all  laws.  Cicero  combined  the  char- 
acters of  the  statesman  and  the  lawyer,  and  his 
philosophy  was  used  in  Christian  Ethics  by  St. 
Augustine  and  other  fathers  of  the  church.  The  Civil 
Law  of  the  Romans  is  to  this  day  a  portion  of  the 
legal  life  of  every  free  citizen  in  Europe  and  Amer- 
ica. But  the  consolidation  of  the  law  under  Jus- 
tinian shows  that  the  development  of  the  Eoman 
State  and  people  had  then  ceased  forever. 

The  last  conspicuous  form  of  ancient  philosophy 
was  that  which  it  assumed  at  Alexandria.  The  city 
chosen  by  the  pupil  of  Aristotle  to  bear  his  name, 
and  to  rise  to  scientific,  commercial,  and  political 
importance  over  others,  as  its  founder  overcame  em- 
pires, became  the  scene  of  great  thinkers  and  mighty 
schools.  Plotinus  resuscitated  Plato  ;  Proclus  gave 
the  world  another  Aristotle.  The  closing  of  the 
Athenian  schools  by  Justinian,  and  the  death  of 
Boethius,  may  be  considered  the  last  events  in 
ancient  philosophy.  Nothing  can  be  more  un- 
founded than  to  suppose  because  Boethius  is  usually 
styled  the  last  of  ancient  philosophers,  and  Des- 
cartes the  first  of  modern,  that  therefore,  from  the 
sixth  to  the  seventeenth  centuries,  there  had  been  no 
philosophical  activity.  We  have  too  much  disre- 


156  HISTORICAL  REVIEW. 

garded  the  philosophy  of  the  so-called  Dark  Ages. 
It  is  usually  the  least  explored,  but  by  no  means 
the  least  instructive  period  of  European  history,  as 
it  has  been  traced  in  the  disquisitions  of  Montes- 
quieu, Ranke,  Hurter,  Voight,  and  Hallam.  The 
feudal  and  legal  systems  of  Europe  arose  inde- 
pendently of  mere  abstract  investigations  on  mind, 
and  of  the  principles  of  doctrinal  theology.  All  the 
most  important  laws  and  institutions  of  European 
society  were  dug  out  of  the  mine  of  that  ponder- 
ous and  inexhaustible  mass  of  human  speculation. 
There,  even  more  than  among  the  ancients,  may  be 
found  the  well-springs  of  our  modern  speculative 
doctrines  and  controversies.  In  fact,  no  age  in  the 
world's  history  was  more  productive  of  great  men. 
It  was  the  age  of  William  the  Norman,  of  the  well- 
taught  Lanfranc,  of  Abelard,  and  Bernard  of 
Clairvaux,  of  the  learned  Mussulmans  of  Spain,  of 
Roger  Bacon,  of  Albertus  Magnus,  of  St.  Thomas 
Aquinas,  of  Duns  Scotus,  of  Alexander  Hales,  of 
Occam  and  of  Bradwardinus,  of  Thomas  the  Rhymer 
and  of  Marco  Polo,  of  Sir  William  Wallace  and 
Edward  the  First.  It  was  the  age  of  rising  cities, 
of  consolidated  feudalism,  of  literature  beginning  to 
breathe,  of  liberty  struggling  to  be  born.  It  is  a 
universal  law  of  nature  that  a  new  organization  shall 
always  be  preceded  by  the  entire  dissolution  of  what 
has  gone  before.  The  mineral  will  crystallize  anew 
only  after  it  has  been  completely  dissolved.  The 


HISTORICAL   REVIEW.  157 

vegetable  and  the  animal  must  be  decomposed  be- 
fore their  elements  can  recombine  into  other  forms 
of  life.  So,  too,  a  new  society  can  arise  only  when 
the  old  one  has  been  wholly  dissolved,  its  atoms  freed 
from  each  other,  and  its  old  arrangements  broken 
up,  that  every  particle  may  be  at  liberty  to  become 
part  of  the  new  living  frame,  according  to  some 
other  law  than  that  which  governed  the  formation 
of  the  old  social  unit.  The  Eoman  world  had  to  be 
ground  down  and  dissolved  by  barbarian  and  Chris- 
tian influences  before  the  formation  of  modern  soci- 
ety became  possible.  Then  the  church  set  about 
the  task  of  reorganizing  a  body  of  knowledge,  of 
pouring  her  vivifying  and  purifying  light  through 
all  the  powers  and  capacities  of  thought  which 
were  slumbering  in  the  minds  of  men,  so  as  to 
arouse  them  to  exercise  themselves  in  the  various 
pursuits  of  arts  and  sciences.  Philosophy  meditated 
on  the  deep  truths  of  religion,  and  endeavored  to  ar- 
range them  in  logical  order  and  sequence.  An 
acute  and  penetrating  logic,  like  the  flaming  sword 
of  Paradise,  turned  every  way  to  guard  the  sanctu- 
ary of  religious  truth. 

Upon  the  fall  of  the  Roman  Empire,  the  study  of 
the  Civil  Law  was  abandoned — an  age  of  legal  dark- 
ness for  a  time  covered  Europe.  Upon  the  revival 
of  learning  in  Europe,  the  term  Jurisprudence  was 
not  used  to  designate  that  department  of  mental  sci- 
ence which  treats  of  the  rules  of  universal  justice. 


158  HISTORICAL   REVIEW. 

In  its  primary  sense,  the  word  Jurisprudence  was 
used  to  denote  the  knowledge  of  the  Roman  Law. 
The  science  of  law  in  Europe  dates  from  the  twelfth 
century.  It  was  then  associated  with  theology  and 
scholasticism.  Irnerius  was  the  contemporary  of 
Abelard.  During  four  centuries  from  the  year  1100, 
the  Civil  Law  was  zealously  cultivated  in  Italy; 
and  simultaneously  the  Feudal  and  Canon  Laws  ac- 
quired a  systematic  form. 

Six  centuries  after  the  complete  codification  of 
the  Eoman  Law,  it  began  again  to  be  cultivated  in 
Italy.  Irnerius,  Accursius,  and  Bartolus  represent 
the  schools. 

In  the  sixteenth  century,  Alciatus  and  Cujacius 
established  the  French  school  of  Civil  Law. 

Machiavelli,  in  Political  Jurisprudence,  accom- 
plished a  grander  reputation,  and  founded  a  school, 
which,  during  the  sixteenth  and  part  of  the  seven- 
teenth centuries,  had  for  its  dogma  the  right  to  use 
fraud  in  politics. 

Sir  Thomas  More  introduced  into  politics  the 
spirit  of  Christianity,  which  he  attested  by  his  mar- 
trydom. 

The  learned  ecclesiastical  jurists  of  the  Spanish 
universities,  Vasquez,  Victoria,  Soto,  Suarez,  in 
their  laborious  treatises  on  justice,  collected  the 
principles  of  Natural  Law  and  of  Politics  as 
enounced  by  the  fathers  and  schoolmen  of  the 
Middle  Ages. 


HISTOEICAL   REVIEW.  159 

Bodin,  late  in  the  sixteenth  century,  appears  as 
the  first  great  antagonist  of  Machiavelli,  and  in  his 
"  Eepublic  "  discusses  the  divisions  of  politics  and 
laws. 

With  the  commencement  of  the  seventeenth  cen- 
tury, Bacon  extends  the  inductive  method  from 
physical  to  mental  and  political  science.  As  such, 
he  is  the  original  discoverer  of  the  principles  lead- 
ing to  individual  liberty. 

Grotius  treated  of  the  topics  of  Civil  Right  in  re- 
lation to  those  federal  and  international  relations 
which  yet  are  imperfectly  developed,  but  which  in 
time  will  harmonize  the  powers  of  the  individual 
governments  now  exercising  authority  over  the  na- 
tions of  the  human  race. 

But  whilst  Grotius  developed  his  lofty  theories 
for  citizens  of  the  world,  Hobbes  scientifically  an- 
alyzed the  lowest  laws  of  nature.  Through  cow- 
ardice and  fear,  the  inferior  types  of  man  always  do 
their  best  to  injure  strangers.  In  managing  the 
lowest  developments  of  society,  the  only  possible 
government  is  a  despotism. 

In  England,  during  the  seventeenth  century,  Cul- 
verwell,  Zouch,  Selden,  Harrington,  Sidney,  Cum- 
berland, and  Locke  wrote  on  the  Law  of  Nature 
and  Nations,  or  investigated  other  branches  of  Civil 
or  Political  Eight. 

Late  in  the  seventeenth  century,  the  German 
School  of  Jurisprudence  originates  with  Puffendorf , 


160  HISTORICAL   REVIEW. 

is  illustrated  by  Leibnitz,  and  has  lasted  in  an  un- 
broken chain  of  professors  at  the  universities  down 
to  our  own  times. 

In  the  eighteenth  century,  Yico,  Beccaria,  and 
Filangieri  represent  the  Italian  school,  and  illustrate 
the  progress  of  nations,  punishment,  and  legislation. 
The  spirit  of  laws  is  discussed  by  Montesquieu  and 
the  encyclopedists.  And  the  series  of  the  French 
jurists  ends  with  those  who  framed  the  Code  Napo- 
leon. 

The  Metaphysics  of  Law  are  reviewed  by  Kant. 
Some  of  his  definitions  are  the  best  in  the  Science 
of  Jurisprudence. 

Bentham  and  Savigny  are  amongst  the  last  and 
greatest  writers  on  Jurisprudence. 

Sir  Samuel  Eomilly,  Sir  James  Mackintosh,  Sir 
Robert  Peel,  and  Lord  Brougham,  in  the  present 
century,  transferred  to  English  legislation  many  of 
the  scientific  theories  of  Bentham. 

Lord  Brougham,  by  his  individual  labors,  gave  a 
new  impulse  to  the  cultivation  of  the  Social  Sci- 
ences. 

Lord  Selborne  has  associated  his  name  with  the 
reconstruction  of  the  judicial  system  of  England. 
Sir  John  Duke  Coleridge  has  introduced  the  most 
important  legal  reforms.  The  leaders  of  the  bar 
are  amongst  the  most  earnest  reformers  of  the  law. 


HISTOEICAL   REVIEW.  161 


The  world  is  coming  under  the  reign  of  law. 
The  nineteenth  century  is  the  era  of  great  nations. 
The  gigantic  States  of  modern  times  are  proofs  of 
increased  power  of  organization,  and  of  more  willing 
obedience  to  law  by  the  multitudes.  The  United 
Kingdom  of  Great  Britain  and  Ireland,  the  Empire 
of  Eussia,  the  United  States  of  America,  govern 
larger  portions  of  the  world,  possess  greater  wealth, 
can  set  more  legions  in  the  field  or  squadrons  on 
the  ocean,  than  the  old  Eoman  Empire  of  the 
CaBsars  in  their  mightiest  days.  Eussia  is  now  the 
most  conservative  State  in  the  world.  America  is 
the  most  democratic  State  in  the  world.  In  human 
affairs  one  lesson  from  history  is,  thai  mighty  and 
rapid  changes,  conducted  by  violence,  produce  wars 
between  nations,  intestine  seditions,  and  ruin  in 
States.  The  objects  of  all  governments  ought  to 
be,  in  the  first  instance,  peace,  order,  and  religion, 
without  which  peace  and  order  are  most  difficult  to 
maintain.  Enlightened  despotism  recognizes  the 
rights  of  man.  The  Emperor  Alexander  II  has 
given  land  and  liberty  to  fifty  millions  of  Eussian 
and  Polish  peasants.  In  the  history  of  the  world 
very  few  men  have  had  the  happiness  to  do  so  much 
good  to  mankind.  On  a  gigantic  scale,  the  Empe- 
ror Alexander  has  done  for  Eussia  what  Stein  and 
Hardenberg  less  generously  did  for  the  Prussian 

JURISPRUDENCE— 11. 


162  HISTORICAL   REVIEW. 

peasantry,  what  Mr.  Gladstone,  through  all  the  dif- 
ficulties of  representative  government,  has  endeav- 
ored to  accomplish  for  Ireland.  Just  laws,  regulat- 
ing the  tenure  and  distribution  of  landed  property, 
are  the  triumph  of  statesmanship.  Great  national 
systems  of  education  under  centralized  govern- 
ments are  abolishing  local  dialects,  and  are  aiding 
the  union  of  mighty  nations  by  the  diffusion  of  the 
most  advanced  and  noble  languages. 

The  true  origin  of  the  rapid  greatness  and  devel- 
opment of  Prussia  is  to  be  found  in  the  national 
education  of  the  people  and  in  the  emancipation  of 
the  land,  commenced  by  Stein  in  1807,  and  by  Hard- 
enburg  in  1820. 

A  great  portion  of  Western  Europe  is  now  going 
through  a  period  of  anarchy  and  disorder.  After 
ages  of  historical  ruin,  there  appear  fair  prospects  of 
peace  and  progress  in  the  East.  In  every  respect 
Eastern  Europe  is  in  a  rapid  state  of  transition.  A 
vast  change  is  coming  over  Asia.  The  railways 
alone  bring  a  modified  civilization.  A  railway 
bridge  is  to  cross  the  Hellespont.  Railways  into 
the  heart  of  Asia  will  rapidly  open  to  the  industry 
and  cultivation  of  Europe  districts  in  Southern  Si- 
beria, with  soil  and  climate  equal  to  those  of  France 
and  Italy,  the  communication  with  which  is  now 
interrupted  by  the  steppes  and  deserts  where  roam 
the  nomad  tribes  of  Turkistan.  One  of  the  con- 
templated lines  to  India  is  to  run  by  Tiflis,  the  Cas- 


HISTORICAL   REVIEW.  163 

plan  Gates,  Teheran,  Meshed,  Herat,  Cabul,  and 
the  Khyber  Pass,  to  Peshawur — the  route  by  which 
Alexander  the  Great  led  the  Macedonian  veterans 
to  the  Indus.  A  line  is  run  from  the  Caspian  Sea 
to  the  Persian  Gulf.  The  contemplated  Russo-Per- 
sian  lines  will  run  through  districts  once  the  most 
flourishing  on  the  earth,  and  whence  the  "  Great 
King,"  the  terror  of  Greece,  drew  his  legions.  But 
these  fair  regions  are  now  without  peace,  order,  or 
law  ;  and  the  great  populations  and  noble  cities  once 
existing  in  Persia  and  Turkistan  have  vanished. 
But  Samarcand  may  soon  be  a  railway  station,  and 
the  famous  city  of  Timour  may  be  brought  under 
the  reign  of  law. 

China  and  Japan  may  speedily  assume  European 
civilization.  The  government  of  Japan  has  signed 
concessions  for  hundreds  of  miles  of  railway ;  and 
the  government  foundries  in  Japan  are  building 
locomotives  and  ironclads.  The  sons  of  the  nobility 
and  gentry  of  Japan  are  coming  in  numbers  to 
the  cities  of  Europe  and  America,  to  learn  the 
languages,  the  laws,  the  trades,  and  manufactures 
of  the  most  advanced  nations.  The  national  col- 
leges of  Japan  are  stated  to  be  adopting  the  English 
language.  These  mighty  events,  contributing  to  the 
harmony  of  nations,  the  union  of  mankind,  and  the 
peace  of  the  world,  are  possible  only  under  the  reign 
of  law,  resting  on  the  tremendous  power  of  great 


164  HISTORICAL   REVIEW. 

States,  giving  peace  to  men,  and  security  for  life, 
liberty,  and  property. 

In  1872,  by  the  invitation  of  the  Emperor  Alex- 
ander II,  some  of  the  ablest  men  in  Europe  dis- 
cussed in  St.  Petersburg  many  of  the  intricate 
questions  of  international  law :  an  international  sys- 
tem of  the  registration  of  births,  marriages,  and 
deaths ;  the  statistics  of  international  industry  and 
commerce ;  international  sanitary  and  medical  reg- 
istration ;  an  international  system  of  judicial  statis- 
tics; an  international  nomenclature  of  crimes;  an 
international  system  of  weights  and  measures  for  all 
the  nations  of  the  world ;  an  international  system  of 
decimal  coinage  for  all  the  nations  of  the  world.  And 
surely  these  things,  when  accomplished,  will  be 
amongst  the  most  wonderful  works  of  man.  In  St. 
Petersburg  the  representatives  of  the  United  King- 
dom and  of  America  met  the  representatives  of 
every  other  State  in  the  world  at  the  International 
Congress  of  1872.  There,  Egypt  and  Japan  aspired 
to  be  reckoned  amongst  the  progressive,  peaceful, 
and  industrious  nations  of  the  world,  and  Russia 
gave  to  all  the  noblest  hospitality. 

The  gigantic  power  of  Russia  can  be  compared 
only  with  the  increasing  strength  of  America,  or 
the  matured  energy  of  England.  In  Russia,  an  en- 
lightened despotism  directs  the  fortunes  of  eighty 
millions — a  mighty  nation — under  an  aristocracy 
magnificent  in  lineage,  wealth,  diplomacy,  arts,  and 


HISTORICAL   REVIEW.  165 

arms.  In  America,  democracy  allows  absolute  free- 
dom to  the  individual,  and  government  there  is 
conducted  without  a  landed  aristocracy,  or  a  per- 
manent standing  army.  Under  both  systems  of 
government,  the  trade,  commerce,  manufactures, 
and  agriculture  of  the  people  flourish.  In  the 
United  Kingdom  of  Great  Britain  and  Ireland,  both 
systems  of  government  are  united.  As  Tacitus  says, 
"  Res  olim  dissociabiles  principatum  etc  libertatem 
miscuerunt."  We  have  united  monarchy  with  lib- 
erty, things  once  incapable  of  being  united.  Let 
us  hope  that  the  three  great  nations  of  the  world, 
the  United  Kingdom  of  Great  Britain  and  Ireland, 
the  United  States  of  America,  and  the  Empire  of 
Russia,  governing,  under  most  different  systems  of 
political  administration,  gigantic  masses  of  mankind, 
may  continue  to  enjoy  their  present  mutual  good- 
will and  peace — the  greatest  happiness  with  which 
the  Almighty  can  bless  the  human  race. 

Several  political  questions  of  importance  during 
the  present  century  have  prominently  agitated  the 
societies  in  which  they  have  been  raised. 

Such  are  the  questions  of  union  amongst  the 
races  having  the  same  national  origin  and  speaking 
the  same  language  on  the  Continent  of  Europe — 
the  questions  of  a  United  Italy,  a  Germanic  Empire, 
a  Pansclavonic  Confederation  or  Empire. 

The  question  of  international  arbitration  has  ex- 
cited vast  political  interest. 


1G6  HISTORICAL   REVIEW. 

The  two  greatest  social  events  of  the  latter  por- 
tion of  the  nineteenth  century  are  the  emancipation 
of  the  serfs  by  the  Emperor  Alexander  II,  and  the 
abolition  of  slavery  in  the  United  States  of  America. 

All  these  questions,  decided  either  by  internal  or 
international  legislation,  accomplish  social  results. 
A  social  result  is  one  that  manifests  itself  in  the 
collective  life  of  societies,  or  which  affects  entire 
categories  of  individuals. 

Other  purely  legal  questions  are  those  which  con- 
cern the  machinery  of  law.  Such  are — 

Codification. 

Reform  of  the  judicial  system. 

Abolition  of  taxes  on  legal  procedure. 

The  reduction  of  the  expenses  of  justice. 

The  reduction  of  the  expenses  attendant  on  the 
transfer  of  property. 

These  topics  may  serve  as  illustrations  of  discus- 
sion in  the  elevated  regions  of  political  thought. 

Largior  hie  campos  aether  et  lumine  vestit 
Purpureo. 


THE   END. 


INDEX 


INDEX, 


A. 

Abelard-156, 158. 
Accursius— 158. 
Action— defined,  84. 

what  includes,  84. 
JEs  chines— 15. 
^Eschylus— plays  of,  14. 
Africa — tribes  of,  their  mutual  wars,  61. 

Berbers  of,  hostile  only  to  Christians,  G2. 
Albertus  Magnus— 156. 
Alciatus — 158. 
Alexander  II — of  Russia,  emancipates  the  serfs,  161. 

calls  an  International  Congress,  164. 
Alexander  the  Great— his  power  of  organization,  98. 

his  route  of  conquest,  163. 
Alexandria— its  mighty  schools,  155. 
Alva,  Duke  of— 65. 
Amazon — 42. 

Arabians— mutual  wars  of,  61. 
Aristotle—  condemns  geometrical  accuracy  in  moral  reasoning,  2 

analyzes  divisions  of  justice,  154. 
Arkwright,  Sir  Richard— 125. 
Asia— despotisms  of,  96. 
Athens— the  first  literary  State,  14. 

her  wealth  in  the  time  of  Pericles,  35. 

condition  of  Western  Europe  at  that  tune,  contrasted,  42. 

Courts  of,  in  political  trials,  92. 

Parthenon  of,  128. 

169 


170  INDEX. 


B. 


Babylon— 41. 

Bacon,  Lord— on  reduction  of  law  to  axiom,  2. 

on  the  law  of  laws,  70. 

his  inductive  method  applicable  to  psychology,  22. 

original  discoverer  of  principles  of  liberty,  59. 
Bacon,  Roger— 156. 
B  art  olus — 158. 
Beccaria,  Caesar— 160. 
Benevolence— instances  of,  56,  57. 
Bentham,  Jeremy— the  analyst  of  jurisprudence,  8,  160. 

defines  the  limits  between  Ethics  and  Jurisprudence,  51. 

divides  property  into  four  things,  90. 

views  of,  on  taxation,  121. 

invents  term  "international,"  129. 

on  codification,  four  conditions  of,  143. 
Bernard  of  Clairvaux— 156. 
Blackstone,  Sir  "William— defines  Positive  Law,  79. 

divisions  of  law  by,  81,  82. 

as  a  lecturer,  126. 

Bodin,  John— opposes  Machiavelli,  159. 
Boethius— death  of,  close  of  ancient  philosophy,  155. 
Bolingbroke,  Lord — views  of  on  law,  2. 
Bradwardinus— 156. 

Brahmins — of  India,  their  strictness  as  to  caste,  34. 
British  Isles— See  ENGLA:NT>. 
Brougham,  Lord— views  of  on  the  moral  faculty,  29. 

views  of  regarding  juries,  117. 

his  labor  for  the  Social  Sciences,  160. 
Brucker,  Johann  Jacob— 25. 
Burke,  Edmund— remarks  of  on  Howard  the  philanthropist,  56. 

reflections  of  on  life,  72. 

views  of  regarding  Jurisprudence,  54,  72. 
Burns,  Robert— 125. 
Butler,  Joseph— views  of  on  moral  reasoning,  27,  28. 


INDEX.  171 


0. 


Caesar,  Julius — power  of,  99. 

Carthage— 16,  41. 

Central  America — magnificent  ruins  of,  41. 

Charles  V— 32. 

Chaucer,  Geoffrey— extract  from,  154. 

China— may  assume  European  civilization,  163. 

Cicero,  Marcus  Tullius— views  of  on  the  moral  faculty,  28. 

his  contempt  for  commerce,  36. 

on  uniformity  of  laws,  147. 

combination  of  statesman  and  lawyer,  155. 
Cincinnatus,  Lucius — 31. 
Civilization— defined,  83. 

modern,  views  of  Guizot  on,  128. 

as  yet  in  infancy,  129. 
Civil  Law — a  branch  of  Positive  Law,  86. 

its  chief  end,  87. 

Clans — Scottish,  right  of  private  war,  61. 
Clarke,  Dr.— 27. 

Code  Justinian — a  consolidation  of  the  Roman  law,  139. 
Code  Napoleon— an  historical  example,  139. 
Codification — the  last  stage  of  legislation,  138. 

indicates  cessation  of  progress,  139. 

dangers  attending,  139-142. 

complete,  impossibility  of,  140. 

four  conditions  of,  Bentham's,  143. 

civil  and  penal  codes,  their  purview,  144,  145. 

true  method  of,  145. 
Coke,  Sir  Edward — an  empirical  lawyer,  50. 

prosecutes  Sir  Walter  Kaleigh,  69. 

on  the  knowledge  of  law,  70. 

Coleridge,  Sir  John  Duke — his  important  legal  reforms,  160. 
Commerce — contempt   with   which  was   regarded   in  classic 
times,  36. 

contemned  also  by  the  feudal  lords,  38. 

falls  into  the  hands  of  the  Jews  and  Lombards,  38. 


172  INDEX. 

Commerce— Continued. 

influence  of  upon  International  Law,  147. 

uniform  systems  demanded  by,  147. 
Common  Law— fatal  duel,  treated  as  murder  by,  53. 

definition  of,  130. 

called  "unwritten  law,"  why,  132. 

growi;k  of,  the  offspring  of  necessity,  132,  133. 

never  stationary,  always  growing,  133. 

administration  of  in  England,  134. 

distinction  of  from  equity,  134,  135. 

rigor  of  Courts  of,  how  relieved,  138. 

errors  in,  correction  precluded,  139. 
Communism— 18. 

dangers  apprehended  from,  122. 
Constitution— defined,  96. 
Counsel — when  prisoners  were  not  allowed,  70. 
Court— of  King's  Bench,  70. 

House  of  Commons,  as  a,  93. 

of  Chancery,  58,  137. 

Athenian,  in  political  trials,  92. 

of  Common  Law,  contrasted  with  Chancery,  137. 
Crime— defined,  87. 
Cujacius— 158. 
Culverwell— 159. 
Cumberland,  Richard— 159. 


D. 


Daco-Romans— of  Transylvania,  descendants  of -the  Romans, 

66,67. 

D'Aguesseau,  Henri— distinction  of  terms  by,  129. 
Dark  Ages— wrongly  so  called,  156. 

See  MIDDLE  AGES. 
Definitions— Jurisprudence,  1,  82. 

law  in  its  widest  sense,  3. 

in  Jurisprudence  proper,  72. 

Natural  Law,  3,  74,  75,  77. 

science,  4,  154. 


INDEX.  173 

Definitions— Continued. 

philosophy,  4. 

mental  philosophy,  4. 

statistics,  11. 

Ethics,  19. 

Political  Economy,  30. 

science,  art,  49. 

morality,  152. 

positive  law,  78, 83. 

civilization,  83. 

legal  relations,  84. 

actions,  84. 

rights,  84. 

crimes,  87. 

liberty,  89. 

slavery,  84. 

property,  84. 

police,  94. 

procedure,  95. 

constitution,  96. 

tax,  taxation,  103,  104. 

Equity,  134. 

International  Law,  129. 

Common  Law,  131. 

Statute  Law,  132. 

when  and  when  not  useful,  139. 
Demosthenes— 15, 16. 
Descartes,  Rene— discoveries  of,  28. 

styled  the  first  of  modern  philosophers,  155. 
Despotisms— political  disadvantages  of,  98. 

when  successful,  98. 

of  Asia,  96. 

of  Napoleon  and  Caesar,  99. 
Divine  Law— denned  by  Plato,  73. 

promulgated  by  God,  74. 

is  the  province  of  the  theologian,  75. 
Domat,  J.— divisions  of  law  by,  76, 

Dueling— when  fatal,  treated  as  murder  by  common  law,  53. 
Duns  Scotus— 156. 


174  INDEX. 


E. 


Education— duties  of  government  as  to,  121-120,  149,  150. 

of  the  poor,  under  certain  limitations,  121,  122. 

in  England,  national  endowments  for,  123. 

higher,  should  community  provide,  123-127. 

views  of  Adam  Smith  on,  123,  124. 

national,  possibilities  of,  125,  126. 
Egypt— lost  civilization  of,  14. 

foreign  aggression  of,  16. 

former  wealth  of,  33. 

Pyramids  of,  33. 

system  of  caste  formerly  enforced  in,  34. 
Emigration — of  European  poor  to  America,  64. 

to  Australia  and  America,  beneficial  effects  of,  64. 
Endowments— of  English  universities,  national,  123. 

for  higher  education,  Adam  Smith  on,  123,  124. 
England— contrasted  with  ancient  Tyre,  32. 

the  carrier  of  the  world,  36. 

common  law  of,  when  treats  dueling  as  murder,  53. 
its  administration,  134. 
its  spread,  151. 

former  diversities  of  race  and  language,  62,  100. 

an  asylum  for  the  oppressed,  65,  66. 

crown  lands  of,  57. 

law  of  real  property  in,  reform  of,  70,  148. 

House  of  Commons  of,  as  a  political  court,  93. 

career  in,  open  to  talent,  100. 

political  organization  of,  gradual  development,  100. 

poor  of,  their  lack  of  amusement,  122. 

universities  of,  their  national  endowments,  123. 

Courts  of,  their  jurisdiction,  137. 

superiority  of,  over  ancient  governments,  161. 

government  of,  a  union  of  monarchy  with  liberty,  165. 
Equity— definition  of ,  i:;i. 

by  Sdilcgol,  (h-otius,  and  Puffciidorf,  135. 

distinct  from  common  and  statute  law,  135. 


INDEX.  175 

Eq  uity— Continued. 

views  of  Charles  Butler  on,  13G. 

paramount  in  ancient  Roman  law,  137. 

technical  meaning  of,  in  England  and  United  States,  137, 

138. 
Ethics— a  division  of  Social  Science,  5. 

definition  of,  19. 

history  a  valuable  adjunct  to,  27. 

contrasted  with  practical  morality,  51. 

with  jurisprudence,  52. 
Etruria— 65. 
Europe— 16,  18,  31,  90,  145,  161-164. 

modern,  superiority  of  governments  of  to  ancient,  161. 

Western,  in  anarchy  and  disorder,  162. 

Eastern,  in  a  state  of  transition,  162. 

International  Congress  of,  164. 


F1. 

"  False  Delicacy  "—comedy  of,  88. 
Family— first  nucleus  of  society,  61. 

no  instance  of  an  isolated  one,  61. 

development  of  into  the  tribe,  (51. 
Faubourgs— St.  Antoine  and  Marceau,  battle  of,  56. 
Feiielon,  Francois — 29. 
Feudal  system— effect  of  invention  of  gunpowder  upon,  20. 

domination  of  the  lords  over  their  serfs,  38. 

with  its  decline,  modern  society  arose,  40. 

influence  of,  on  taxation,  117. 
Filaiigieri,  Gaetano— 160. 
France— 18,  95. 

union  of  its  provinces,  62. 

artisans  of,  65. 

stationary  in  wealth  and  population,  139. 
Freedom — of  press,  of  discussion,  of  action,  13. 

an  essential  ingredient  of  civilization,  13. 

of  constitutions,  a  security  for  peace,  17. 

or  liberty,  denned,  89. 


176  INDEX. 


Gabelle— of  France,  103.        

Germany — national  unity  of,  63,  165. 
Gladstone,  'Win.  E.— his  Land  Act,  102,  162. 
Governments— how  developed,  87. 

relations  of  toward  people,  88. 

business  of,  88, 89. 

rights  of  to  coerce  and  punish,  89. 

natural  rights  intrusted  to,  91. 

as  deciders  of  disputes,  why,  92. 

the  three  functions  of,  98. 

constitutional,  political  power  under,  94. 

interposition  of,  when  required,  96. 

power  of  central,  diminished,  97. 

mere  machines  of  police  and  order,  97. 

different  forms  of,  97. 

two  systems  of,  now  contending,  98. 

duties  of  as  to  education,  121-129. 

modern,  subject  to  certain  rules,  145. 

modern,  superiority  of  over  ancient,  161. 

objects  of,  161. 

See  INTERNATIONAL  LAW. 
Great  Britain— See  ENGLAND. 
Grenville  Act- 93. 
Greece — lost  civilization  of,  14. 

destroyed  by  Rome,  16. 

her  greatest  prosperity,  32. 

ancient,  piracy  not  considered  dishonorable  in,  62. 

foreigners  considered  barbarians  in,  62. 

politics  of,  corrupted  by  despotism,  155. 
Grotius,  Hugo— deiinition  of  Natural  Law  by,  74. 

definition  of  Equity  by,  1:55. 

on  the  theory  of  civil  rights,  159. 
Guizot,  Francois  Pierre — as  a  lecturer,  126. 

views  of,  on  modern  civilization,  128. 


IXDEX.  177 


H. 

Hales,  Alexander— 156. 

Hallam,  Henry— doctrine  of  as  to  universal  law,  5. 

disquisitions  of,  on  the  Dark  Ages,  150. 

Hardenberg,  Prince  Von— his  efforts  for  the  Prussian  peas- 
antry, 1G2. 

Harrington,  J.— 159. 

Hellespont— a  railway  bridge  to  cross,  162. 
Herodotus— history  of,  read  at  Olympic  games,  14. 
Hippocrates— extract  from,  154. 

Hobbes,  Thomas  —theory  of  on  mutual  enmity,  60, 150. 
Holland— 113. 
Homer— public  recitations  by,  14. 

his  views  on  piracy,  35. 
Hooker— definition  of  law  by,  3. 
House  of  Commons— as  a  political  court,  93. 
Howard,  John — benevolence  of,  56. 
Hume,  David — views  of  on  moral  reasoning,  20. 

on  government,  objects  of,  117. 
Hurter— 156. 


I. 


India— contemplated  route  to,  162,  163. 
Indians — Xorth  American,  mutual  wars  of,  61. 
Inductive  method— of  investigation,  22-24. 

the  only  means  of  constructing  a  scientific  ethics,  27. 
Inheritance — principles  on  which  depends,  90. 

of  State,  when  persons  die  intestate,  91. 

proposed  limitation  of  testator,  91. 
Institutes— of  Justinian,  law  defined  in,  3. 

division  of  subjects  of  natural  law  in,  81. 

definition  of  Jurisprudence  in,  46. 
International  arbitration— interest  excited  by,  165. 
International  Law— recent  invention  of  term,  129. 

definition  of,  129. 

JURISPRUDENCE— 12. 


178  IXDEX. 

International  Law— Continued. 

still  in  a  defective  condition,  130. 

a  code  of,  should  be  adopted,  130,  146,  147. 

its  two  divisions,  131. 

the  offspring  of  modern  civilization,  145. 

supported  by  appeal  to  arms,  14(3. 

distinction  between  it  and  "law  of  nations,"  14G. 

complete  development  of,  how  may  be  obtained,  14T. 
aided  by  study  of  Jurisprudence,  148. 

influence  of  commerce  upon,  147. 

of  patents,  copyrights,  etc.,  need  of,  151,  152. 
Intoxication — powerlessness  of  law  against,  58. 

how  may  be  prevented,  58. 

addiction  of  English  and  Irish  poor  to,  122. 
Ireland- Land  Act  of,  102,  1G2. 

poor  of,  their  lack  of  amusements,  122. 
Iruerius — the  contemporary  of  Abelard,  158. 
Italian  republics— 95. 
Italy — under  one  government,  63,  165. 


J. 

Japan— assuming  European  civilization,  .163. 

colleges  of,  adopting  English  language,  163. 
Jeffrey,  Chief  Justice — his  bloody  western  assize,  70. 
Jones,  Sir  William— views  of,  on  Jurisprudence,  71. 
Jurisprudence — definition  of,  1,  48. 

first  principles  of.  2. 

a  division  of  Social  Science,  5. 

intimate  connection  of,  with  Sociology  and  Political  Econ« 
omy,  11. 

object  of,  11. 

various  meanings  of  the  term,  46. 

development  of  law,  46,  69. 

classification  of  laws  required  by,  48. 

as  an  art  and  a  science,  distinction  between,  49,  51. 

contrasted  with  Ethics,  51,  52. 

gradual  progress  of,  54. 

limits  of,  54. 


INDEX.  179 

Jurisprudence— Continued. 

true  objects  of,  55. 

principles  of,  the  base  of  government,  55. 

definitions  in,  historically  considered,  G8. 

considered  under  various  heads,  G8. 

recent  origin  of,  09. 

taught  in  universities  of  Great  Britain,  69: 

views  of  Sir  William  Jones  on,  71. 

description  of,  by  Edmund  Burke,  34,  72. 

includes  entire  domain  of  rights  and  duties,  75. 

classification  of  its  departments,  82,  130. 

scientific  definitions  in,  82-91. 

end  of,  is  the  happiness  of  mankind,  83. 

political,  questions  of,  91. 

embraces  a  wide  range,  95. 

study  of,  its  beneficial  results,  102. 

its  four  divisions,  130,  131. 

development  of,  whence  arises,  145. 

study  of,  aids  development  of  International  Law,  148. 

practical  questions  considered  by,  152. 

historical  review  of,  154-166. 

formerly  meant  knowledge  of  the  Roman  Law,  158. 

German  school  of,  originated  with  Puffendorf,  159. 
Jurists,  modern — erroneous  methods  of  investigation  by,  7. 

failure  of,  to  distinguish  between  moral  and  compulsory 
law,  7. 

duties  of,  53. 
Jury  trial — unsuited  to  certain  nations,  7. 

under  this  system  justice  becomes  technical,  47. 

views  of  Lord  Brougham  regarding,  117. 
Justinian— Institutes  of,  3,  77,  81. 

consolidation  of  Roman  Law  by,  139. 

Athenian  schools  closed  by,  155. 

K. 

Kant,  Immanuel— his  project  of  perpetual  peace,  17. 

views  of,  on  morals  and  legislation,  24,  29. 

comments  of,  on  the  Republic  of  Plato,  25. 

reviews  metaphysics  of  law,  160. 
Kent,  Chancellor— as  a  lecturer,  126. 


180  INDEX. 


Labor— territorial  division  of,  65. 

intensity  of  increases  with  progress  of  society,  107,  103. 
Lanfranc— 150. 

Las  Casas,  E  art olomeo— devotion  of,  56. 
Latium — 65. 
Law — society  based  upon,  1. 

definition  of,  in  its  widest  sense,  3. 
limited  meaning  of  in  Jurisprudence,  4. 
how  conformed  to  natural  justice,  52. 
a  medium  between  moral  standards,  53. 
what  it  cannot  enforce,  57,  80. 
powerless  against  intoxication,  58. 
theory  of  Vico  as  to,  72. 
definition  of,  72. 
defined  by  St.  Thomas  Aquinas,  73. 

by  Suarez,  73. 
four  great  divisions  of,  73. 
distinctions  in,  by  Modestinus,  75. 
divisions  of,  by  Dornat,  76. 
by  Justinian,  81. 
by  Blackstone,  81. 
ignorance  of  does  not  excuse,  80. 

unscientifically  divided  into  persons,  things,  and  actions,  81. 
comments  of  Leibnitz  upon,  81. 
must  be  rendered  certain,  93. 
taxation  upon,  116,  121. 

science  of,  in  Europe,  dates  from  the  twelfth  century,  158. 
metaphysics  of,  reviewed  by  Kant,  160. 
world  coming  under  the  reign  of,  161. 

See  CIVIL  LAW,  COMMON  LAW,  DIVINE  LAW,  INTEJ; NA- 
TIONAL LAW,  JURISPRUDENCE,  MUNICIPAL  LAW,  NAT- 
URAL LAW,  POLITICAL  LAW,  POSITIVE  LAW,  STATUTE 
LAAV. 

Legal  relations— defined,  84. 

Legislation— rules  of  morality  independent  of,  52,  56. 
rules  of  probity  should  be  defined  by,  52. 


INDEX.  181 

Legislation— Continued. 

a  compromise  between  history  and  philosophy,  53,  83. 

futile  in  regard  to  individual  sentiments,  59. 

transferred  from  sovereign  to  national  assemblies,  93,  94. 
Leibnitz,  Gottfried  Wilhelm— 28. 

comments  of  upon  Roman  division  of  law,  81. 

German  school  illustrated  by,  160. 
Leonidas — and  the  Spartans,  32. 

reflections  on  death  of,  55. 
Livy—  on  the  foundation  of  Home,  65. 
Locke,  John— 159. 

London— inhabitants  of,  industry  required,  108. 
Longfellow,  H.  W.— extract  from,  154. 
Louis  XIV— 65. 


M. 

Machiavelli,  Nicolo— dogma  of  his  school,  158. 
Mackintosh,  Sir  James— views  of  on  Jurisprudence,  53,  160. 
Magyars— Asiastic  origin  of,  66. 

from  same  stock  as  Laplanders,  66. 
Mahomet— union  of  Arabians  by,  61. 
Mahometans — destruction  of  Byzantine  civilization  by,  16. 

of  Spain,  156. 

Mansfield,  Lord— of  the  King's  Bench,  70. 
Marco  Polo— 156. 
Marriage — civilized  life  rests  upon,  90. 

belongs  to  civil  branch  of  law,  144,  145. 
Mathew,  Rev.  Theobald— mode  of  organization,  58. 
Mental  philosophy— definition  of,  4. 

two  branches  of,  4. 
Middle  Ages— doctors  of,  73,  78, 158. 
Mill,  John  Stuart — on  Jurisprudence,  68. 
Modestinus — distinctions  in  laws  by,  75. 

Montesquieu,  Baron  de — disquisitions  of  on  the  Dark  Ages, 
156. 

spirit  of  laws  discussed  by,  160. 
Morality — should  be  independent  of  legislation,  51. 

definition  of,  52. 


182  INDEX. 

Moral  Sciences— 19,  21,  22. 

More,  Sir  Thomas— introduces  Christianity  into  politics,  158. 

Municipal  Law— 79.    See  POSITIVE  LAW. 


Napoleon  I— his  use  of  power,  99. 

his  code  of  laws,  99,  139. 
Natural  Law— denned  by  Justinian,  3,  77. 
by  Cicero,  77. 
by  Grotius,  74. 
by  St.  Chrysostom,  75. 
by  the  author,  75. 
by  Suarez,  78. 

its  limited  sphere  in  Jurisprudence,  74. 
includes  all  principles  of  right,  78. 
Nestor— 35. 

Netherlands— most  prosperous  in  times  of  Charles  V,  32. 
formerly  carriers  of  the  world,  3G. 
artisans  of  the,  65. 

Newton,  Sir  Isaac— discoveries  of,  28. 
Nightingale,  Florence— labors  of,  57. 
Nineveh— 41. 


Paris,  Archbishop  of— his  death,  56. 
Paupers— provided  for  in  advanced  nations,  60 

three  classes  of,  64. 

support  of,  no  absolute  right  to,  105. 

should  not  be  left  to  voluntary  contribution,  106. 

children  of,  should  be  educated,  106. 

why  number  of  does  not  decrease,  107. 

should  not  be  educated  above  position,  108. 
Peel,  Sir  Robert— 160. 
Persian  Gulf— contemplated  route  to,  163. 
Philosophy-  definition  of,  4. 


INDEX.  183 

Physical  Sciences— contrasted  with  Social,  9. 
Pindar— odes  of,  sung  at  Delphi,  15. 
Plato— 24,  25,  26,  73. 

high  price  of  books  in  time  of,  14. 

Republic  of,  tradesmen  excluded  from,  25,  35. 

opposition  of  to  the  Sophists,  71. 
"  Plato,  British  "—See  LORD  BACON. 
Plotiiius— resuscitates  Plato,  155. 
Police— defined,  94. 

power  of,  local,  not  central,  94,  95. 
"Politics  "—Aristotle's,  2. 
Political  Economy— a  division  of  Social  Science,  5. 

universal  opposition  to  first  principles  of,  9. 

object  of,  11. 

definitions  of,  30,  58. 

its  relations  to  capital  and  labor,  31. 

recent  origin  of,  33,  40,  69. 

great  principles  of,  68,  69. 

taught  in  universities  of  Great  Britain,  69. 
Political  Law— defined,  95. 

Political  Science— See  SOCIAL  SCIENCE,  POLITICAL  ECONOMY. 
Pope,  Alexander — translation  of  Plato,  71. 
Positive  Law — Jurisprudence  defined  as  science  of,  1 

distinction  between  it  and  Ethics,  52. 

powerless  against  intoxication,  58. 

cruelty  to  animals  punished  by,  75. 

defined,  78,  79. 

by  Blackstone,  79. 

formerly  termed  Municipal  Law,  79. 

in  two  branches,  civil  and  criminal,  80,  86. 

divided  into  common  and  statute,  131,  132. 
Printing— invention  of,  effect  on  popular  education,  15,  40. 

contrast  between  the  early  newspapers  and  the  present,  15. 
Probity— rules  of,  should  be  denned  by  legislation,  51. 
Procedure— defined,  95. 
Proclus— 155. 
Property— definition  of,  89. 

what  founded  upon,  89. 

Bentham  includes  four  things  in,  90. 

original  and  secondary  titles  to,  90. 


184  INDEX. 

Property— Continued. 

sense  of,  our  earliest  idea,  96. 

insecure,  without  government,  96. 

desire  for,  incentive  to  advancement,  101. 
Prussia — origin  of  its  rapid  greatness,  162. 

emancipation  of  the  land  in,  162. 
Fuffendorf,  Samuel— definition  of  Equity  by,  135. 

German  school  originated  with,  159. 
Punishment — when  should  and  when  should  not  be  applied,  51. 

revenge  the  origin  of,  86. 

as  an  example  and  as  a  preventive,  86. 

power  of,  confided  to  local  administration,  94 


Races— fusion  of,  advantageous  to  mankind,  64,  65- 

pure,  decay  of,  65. 

modern  English,  a  compound,  66,  100. 

use  of  term,  66. 

development  and  retrogression  of,  66,  67. 
Raleigh,  Sir  Walter— prosecuted  by  Coke,  69. 
Ranke,  Leopold— 156. 

Religious  persecution— misery  caused  by,  59. 
Republics — the  fiercest  aggressors  in  history,  17. 
Rhapsodists— the,  public  recitations  by,  14. 
Rights-  denned,  84. 

divided  into  four  classes,  85. 

intrusted  to  government,  91. 

of  every  man  to  self-defense,  92. 

of  rulers  to  inflict  punishment,  92. 
Rome— civilization  of,  14. 

superiority  of  modern  over,  14. 

past  greatness  of,  14. 

lack  of  a  popular  literature  in,  15. 

conquerors  of,  their  ignorance,  15. 

sumptuary  laws  of,  02. 

her  conquests  followed  by  degeneracy,  32. 

wealth  of,  under  the  emperors,  :;."). 

commerce  prohibited  to  persons  of  rank,  36. 


INDEX.  185 

Rome— Continued. 

plunder  her  source  of  wealth,  36,  37. 

derivation  of  the  word  tributum,  37. 

seven  citizens  required  to  witness  a  will,  47. 

citizens  of,  their  disregard  of  foreigners'  rights,  02. 

mythical  foundation  of,  65. 

code  of,  unscientific  division  of  law  in,  82. 
adopted  by  Blackstone,  82. 

proconsuls  of,  their  legalized  plunder  of  provinces,  101. 

Colosseum,  St.  Peters,  128. 

ancient  law  of,  equity  paramount,  137. 

civil  law  of,  still  in  use,  155. 

Empire  of,  its  fall,  157. 

inferior  to  modern  governments,  161. 
Romilly,  Sir  Samuel— 160. 
Romulus— city  of,  65. 
Russia— Sclavonic  races  of,  02. 

constitutional  history  of,  95. 

superiority  of,  over  ancient  governments,  161. 

the  most  conservative  State  in  the  world,  161. 

emancipation  of  serfs  by,  161. 

International  Congress  of,  161. 

gigantic  power  of,  164. 

compared  with  Great  Britain  and  America,  165. 


S. 


Savages— "strangers"  and  "enemies"  synonymous  with,  60. 
Savigny,  F.  C.  Von— the  historian -of  jurisprudence,  8,  160. 

as  a  lecturer,  126. 

Scnlegel— definition  of  Equity  by,  135. 
Schleiermacher,  Friedrich— 27. 
Science— defined,  4,  154. 
Sclavonic  races— coalescence  of,  62. 
Scutari— ,"7. 
Security — of  modern  society,  whence  obtained,  100, 101. 

when  does  not  exist,  101. 

what  included  under  term,  108. 


186  INDEX. 

Sedgwick,  Prof.  Theodore— views  of  on  political  principles,  G. 

Selborne,  Lord— reconstruction  of  judicial  system  by,  KJO. 

Selden,  John— 15!). 

Seneca,  Lucius  Annaeus— views  of  on  the  moral  faculty,  29. 

Sidney— 159. 

Sisters  of  Charity— 57. 

Slavery — delinition  of,  89. 

suited  to  some  ancient  systems,  0,  76. 

in  early  ages,  slaves  had  no  rights,  75. 

emancipation  of  IJussian  serfs  from,  161. 

of  American  negroes  from,  166. 
Smith,  Adam— influence  of  on  Political  Economy,  8. 

views  of  on  Jurisprudence,  08. 

maxims  of  on  taxation,  113-116. 

as  a  lecturer,  12G. 

views  of  on  higher  education,  123,  124. 
Socialists— See  COMMUNISM. 
Social  Science— subjects  of,  5. 

divisions  of,  5. 

its  position  at  present  far  from  an  advanced  one,  8. 

importance  of  on  human  progress,  9. 

study  of,  influence  for  good,  10. 

influence  of  on  civilization,  13. 

study  of  should  form  a  part  of  general  education,  43. 

universality  of,  44. 
Sociology— See  SOCIAL  SCIENCE. 
Socrates— £6. 

the  first  citizen  of  the  world,  154. 

his  writings  preserved  by  Plato,  154 
Sophists,  Athenian— exploded  doctrines  of,  5. 

views  as  to  right  and  wrong,  71. 

confusion  of  as  to  morality,  22. 
Sophocles — plays  of,  14. 
Soto,  Domingo— 158. 
Spain— union  of  its  kindoms,  62. 
States — See  GOVI:KNMI;M-. 
Statistics— science  of,  defined,  12. 

intimately  allied  to  the  Social  Sciences,  12. 

objects  of.  12. 

Statute  Low— definition  of,  I:;L». 

how  may  be  improved,  140. 


INDEX.  187 

Stein,  Baron  Von — Ids  efforts  for  the  Prussian  peasantry,  162. 
Stewart,  Dugald— influence  of  morality  on  belief,  21. 
Story,  Justice  Joseph— a  scientific  jurist,.  50. 

as  a  lecturer,  12G. 

St.  Augustine— Ciceronian  philosophy  used  by,  155. 
St.  Chrysostom — definition  of  Natural  Law  by,  75. 
St.  Thomas  Aquinas— 15(j. 

definition  of  law  by,  73. 
St.  Paul— GO. 
Suarez,  Francisco— definition  of  law  by,  73. 

and  his  contemporaries,  158. 
Sympathy — gradual  development  of,  GO. 

theory  of  Hobbes  as  to,  GO. 

original  meaning  of,  62. 

based  upon  recognition  of  equal  rights,  63. 

perfection  of,  G7. 


T. 


Tacitus — extract  from,  165. 
Taille— of  France,  103. 
Tax — definition  and  derivation  of,  104. 
Taxation— how  may  be  excessive,  102. 

influence  of  on  history,  103. 

recent  inquiries  concerning,  103. 

definition  of,  104. 

to  what  objects  devoted,  104. 

funds  obtained  by,  how  misapplied,  109,  110. 

general,  should  not  defray  local  expenses,  110,  111. 

maxims  of  Adam  Smith  regarding,  113-116. 

of  justice,  indefensible,  why,  116-121. 

of. suitors,  should  be  discontinued,  119. 

views  of  Benthani  regarding,  121. 

of  community,  for  higher  education,  127. 
Telemach  us— 33. 
Temple  of  Theseus— 128. 
Thermopylae— Pass  of,  55. 
Thomas  the  Rhymer— 156. 
Trial  by  battle— G9. 
Turkey— pachas  of,  their  legalized  plunder,  101. 


188  INDEX. 


IJ. 

United  Kingdom— See  ENGLAND. 

United  States— Courts  of,  technical  meaning  of  Equity  in,  138. 

superiority  of,  over  ancient  governments,  161. 

the  most  democratic  State  in  the  world,  161. 

compared  with  Russia,  164,  165. 
with  Great  Britain,  165. 

abolition  of  slavery  in,  166. 
Universities— functions  of,  126. 

of  England,  their  national  endowments,  123. 
Jurisprudence  taught  in,  69. 

national,  greatness  of,  125. 


V. 

Vasquez,  G.— 158. 

Vattel,  Emmerich— his  use  of  term  "law  of  nations,"  146. 
Venice— 113. 

"  Verulam,  Athenian  "—See  PLATO. 
Vico,  Giovanni— views  of  on  law,  72. 
represents  the  Italian  school,  160. 
Victoria— 158. 

Vincent  de  Paul— devotion  of,  56. 
Voight— 156. 


w. 

Wallace,  Sir  William— 156. 
War— the  greatest  foe  of  progress,  16. 

ruin  of  Egypt  and  Carthage  by,  16. 

standing  armies  as  an  incitement  to,  17. 

often  caused  by  rapid  changes,  161. 


INDEX. 

War — Continued. 

in  f  f  ndal  times,  the  great  business  of  nations,  39. 

local  aggression,  community  pays  for,  120. 
William  IV— 70. 
William  the  Norman— 15G. 
Wollaston,  William— 27. 


z. 


Zouch,  Richard— distinction  of  terms  by,  129. 
on  the  law  of  nature,  159. 


189 


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